(1 day, 8 hours ago)
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Baroness Cass
Member’s explanatory statement
This amendment and other amendments in the name of Baroness Cass seek to separate the role of Voluntary Assisted Dying Director and Voluntary Assisted Dying Commissioner, and are intended to address the existing position of the Voluntary Assisted Dying Commissioner in the bill which is responsible for the monitoring and assurance of the Act, whilst also having a role in its operational delivery.
Baroness Cass (CB)
My Lords, I will be brief, because I believe that my Amendment 122 and the consequential amendments that follow it address a very straightforward and practical issue—saying that could be the kiss of death, but never mind. It is absolutely self-evident that, if this Bill passes into law, the monitoring of its implementation will be absolutely crucial.
There are several aspects of implementation that we will need to follow closely. The first is any evidence of the concerns that have been widely expressed in this House of coercion, particularly to take account of differentials in the socioeconomic circumstances of those seeking assisted deaths. Secondly, we need to be aware of postcode lotteries in implementation and particular challenges in staffing and delivery in certain localities. Thirdly, we need to be aware of creep, as has occurred in other jurisdictions.
In a later amendment, I have proposed that voluntary assisted dying services should be commissioned by the specialised commissioning team currently located in NHS England. This team commissions highly specialist small volume services, and the assisted dying services would fall within this definition. The advantage of this approach is that there would be a national service spec, nationally defined workforce requirements and quality standards, and monitoring of the contract by the national team.
In late January, the noble and learned Lord, Lord Falconer, notified us of his planned amendments to ensure that the service will be regulated by NHSE or the CQC, or both. However, it is not yet clear how that might work in practice. This leaves us with the currently proposed arrangements in Clause 4, in which the voluntary assisted dying commissioner has a dual role. He or she is required to take on much of the operational delivery of the process and, at the same time, monitor the operation of the Act and report on it to national authorities. I submit that it is not appropriate for the commissioner to be both poacher and gamekeeper and to mark their own homework, because they will be mixing their roles as shamelessly as I have just mixed my metaphors.
My amendments therefore seek to separate the role of the commissioner, to make it much more like that of the Children’s Commissioner, who is fully independent from the agencies she has oversight of, with a director to undertake the delivery aspects of the work. These may or may not be the finally agreed terms or mechanisms, but I think the intent is clear, and I leave it open to both the noble and learned Lord the sponsor and other noble Lords to discuss other ways in which this separation of roles might be achieved.
My only other point is to draw attention to my Amendment 131, which makes it clear that, although the commissioner is supposed to be an individual who has held high judicial office, neither the commissioner nor the director is discharging a judicial function in undertaking their responsibilities under this Act. On this point, I am just a warm-up for the noble Lord, Lord Weir of Ballyholme, who will doubtless speak further to his Amendment 129 on this aspect. I beg to move.
Lord Beith (LD)
I will speak briefly to my amendment in this group because it is my duty shortly to chair the Committee. To broaden the debate that the noble Baroness, Lady Cass, introduced, I simply say that there is clearly a need to establish that this post can have confidence and a degree of consensus around it. I am not sure that that has been achieved by what has been proposed so far.
My amendment simply brings in the procedure used in the Commons for most regulatory posts: they are the subject of some sort of hearing process by the relevant Select Committee. That system was developed in the years when I was in the Commons, and as chair of the Justice Committee I operated it several times. It works reasonably well. In rare cases, the Treasury Committee, for example, has a veto on the appointment, as this amendment suggests, but it is a means of trying to ensure that the right questions are asked at the right time when appointments are made. Surely, after recent weeks, we have learned the lesson that, if you do not have proper scrutiny of appointments and a system in which the right questions are asked, things can go very badly wrong. We certainly do not want them to go badly wrong in this area. That is sufficient to explain what my amendment is about.
Lord Garnier (Con)
My Lords, I am grateful that the noble Lord was able to introduce his remarks before he has to go and perform his functions as chairman of the Committee. I have only a few things to say, and my amendment is discrete, in the sense that it does not really affect much of the rest of the Bill. It can be taken quite briefly, and I hope that the noble and learned Lord, Lord Falconer, will be able to agree to it, not least because it bolsters the job that he once held.
With respect, I disagree with only one point that the noble Baroness, Lady Cass, made. The function of the commissioner is not simply administrative; there is a judicial element to their work, which is found in Clause 4(4)(d). One of the principal functions of the commissioner is
“determining applications for reconsideration of panel decisions under section 18”.
That said, I fully accept that it is a mixed-function job: it is partly administrative and partly judicial—but then so are quite a lot of senior judicial jobs. The Lord Chief Justice and the Master of the Rolls all have heavy administrative burdens as well as having to perform a judicial function, and no one would suggest, I venture to say, that those people should be appointed directly by the Prime Minister.
It is more constitutionally appropriate for the voluntary assisted dying commissioner to be appointed, as so many other judicial and quasi-judicial posts are, by the sovereign on the recommendation of the Lord Chancellor. I appreciate that the office of the Lord Chancellor has changed a lot since the 2005 Act—more’s the pity, in my view, but there we are. That was a long time ago. When I become Prime Minister, of course, I shall have it changed.
There is a nice distinction to be drawn with the appointments made in the way that I suggest. If my amendment is accepted by the Committee or by the House as a whole, it will obviously have a knock-on effect on the appointment of the deputy commissioner under paragraph 3(1) of Schedule 1—but let us not delay ourselves with that. All I am saying is that it is more appropriate for this particular function to be appointed by the sovereign on the advice of the Lord Chancellor, as so many similar posts are.
A Minister responding for the Government in the other place said that the investigatory powers commissioner is appointed by the Prime Minister, and he, like the assisted dying commissioner, has to be a sitting or retired member of the senior judiciary. But that is a false point. The distinction between this job and the investigatory powers commissioner is that the investigatory powers commissioner deals with matters of national security—which are essentially a matter for the Prime Minister—whereas this assisted dying commissioner will deal not with matters of national security, foreign policy or anything of that nature but simply with the workings of this Bill, or this Act as it may yet become.
This a very short and simple point that I am sure the noble and learned Lord can easily agree with, because it does not damage the Bill. It is simply a technical adjustment of the route to appointment, and I urge the Committee to support it.
Lord Weir of Ballyholme (DUP)
My Lords, I will speak to three amendments in this group, two of which stand in my name. The third is Amendment 128 in the name of the noble Baroness, Lady Foster, which I have co-signed and will touch on briefly now.
Amendment 128 is essentially probing in nature. The Bill lists the principal functions of the commissioner—we do not take particular exception to that—but does not outline their specific duties, so we feel that there is a bit of a gap at present and are probing whether the duties are correct and whether the commissioner has a role in ensuring effective oversight. I look forward to hearing the response of the Bill’s sponsor on that.
I move on to Amendment 129, following on from the remarks of the noble Baroness, Lady Cass. When I arrived today I did not anticipate that she would be my warm-up act in relation to the amendment—I thank her for her remarks. The amendment essentially deals with whether the commissioner should be required to be either a senior judge or a retired judge. In part it also has a slightly probing quality, and again I will listen to the remarks of the Bill’s sponsor. Given where the passage of the Bill has gone so far and where it might land—the situation is slightly fluid—and although I appreciate that, for instance, the noble Lord, Lord Carlile, has made suggestions on how we could inject a level of judicial introduction to the panels, we will probably be keen to press this on Report if the issue is not resolved and we are left with the current situation.
The reason for that is that when the Bill was introduced in the Commons, one of its core elements was the judicial function and, indeed, judges on the panels. That was one of the great selling points of the supposed—and slightly self-proclaimed, I have to say—safest Bill in the world. But that position has been resiled from and, although I am sure that the Bill’s sponsor will give reasons for it, we have moved away from that core element. If we do not have that core element of a judge on the panel, do we leave a situation in which the commissioner has to be either a senior serving judge or a retired judge? Would that create a veneer of judicial impact when the core element has been taken out?
That is all the more appropriate when we look at the functions that have been listed for the commissioner, of which there are five under Clause 4(4). Paragraphs (a) and (b) relate to “receiving documents” and compiling a list of eligible panel members. It is hard to see why those functions, which are essentially administrative in nature, would require a level of judicial input. Similarly, paragraph (c) relates to
“making arrangements in relation to such panels”.
Again, that function lies largely within administrative competence rather than requiring any element of judicial quality.
The one area that does touch on that, as has been highlighted, is paragraph (d), which talks about the reconsideration of cases, but cases are not to be reconsidered on their own merits. The Bill’s sponsor in the other place, Kim Leadbeater, said that the commissioner is
“not acting as a judge”,
so there is a query about the level of judicial impact even of paragraph (d). Finally, under paragraph (e) there will be a monitoring role, particularly as regards medical statistics. There is a question mark in relation to that. If we are looking for somebody to undertake that role, which I think was initially put within the remit of the Chief Medical Officer, it seems to me that a medical professional is much better suited to it. There are queries about the applicability and whether we are simply creating a façade of judicial involvement by having the requirements currently in the Bill.
My Amendment 496C would afford a person, if they desire it, the opportunity of a hearing before the commissioner, rather than their case being decided by a paper hearing. That would cover aspects such as someone being registered disabled under the Act, the availability of communication, cognitive impairment and mental distress, in the interests of justice.
Baroness Freeman of Steventon (CB)
My Lords, I will introduce Amendment 144A in my name. It is related to my other Amendments 726A and 728A, which are grouped much later and to which I do not expect to speak. I draw attention to my registered interests.
When I was at the Winton Centre in Cambridge, I led a team that produced information for patients in the NHS, and I am still involved with that. That experience underscores Amendment 144A, which has the support of the BMA. It would make the assisted dying commissioner responsible for the provision of the personalised and balanced information that patients require when making their end-of-life decisions under the Act. I know how much is involved in producing that information, how carefully it needs to be done and how controversial it can be. It therefore needs to be properly resourced, and the lines of responsibility for it must be clear.
We have already had discussion about informed consent. I think we all agree that, during the process outlined in the Bill, people need to go through the process of consent, but they also need to go through the process of shared decision-making, which is different. For both shared decision-making and consent, eligible people need to be given the risks and benefits of the different options open to them—including of doing nothing. That information has to be as personalised to each patient as possible, and presented in a way that is understandable to them. It is rightly the responsibility of the doctors to give that information to patients and to check their understanding of it through talking with them, but where do the doctors get that information?
Increasingly, healthcare professionals are provided with tools to help them. Online risk calculators help to personalise information on prognoses or the chances of an event for a patient such as the one they are talking to at that moment. Decision aids bring together all the current known evidence on side-effects, represented in easily understood ways, and patients can take these away and refer back to them while considering their decision. To give an example, for benign enlarged prostate there are two main classes of medicines and at least eight different types of surgery available to patients. I do not think a single individual doctor would know the numbers for the average effectiveness and for each of the major side-effects for every one of those 10 options. Each specialist would know the figures for two or three of the options that they offered or were familiar with: enough to consent their patients for their favoured option but not enough to help the patient make an informed choice from all the options available. To do that, they need a decision support tool which has all that information, but also more than that. That is why these sorts of decision aids are needed—and I want to give the House a sense of what is involved in making them, because it is important to understanding this amendment.
When we make decision aids, we work hand-in-hand with patients and members of the public, with people with visual and learning disabilities and neurodiversity, and conduct academic research into how people interpret numbers and graphics representing them. I mentioned that the needs for informed consent and shared decision-making are different. What we find when we work with people is that, when making a decision, people weigh up a much broader range of pros and cons than simply risk and benefit numbers. The information they want is not just a percentage risk, which would tend to be what doctors would be able to tell them when doing informed consent; it is also information about how to access different options, including those available outside the NHS. They want to know what would or might happen, including what a certain test actually involves and why it is done. They want to know where things would happen. They need to know what their rights and options are about things such as their right to say no to something or to have someone else with them. They want prompts for questions that they might want to ask or consider asking, and spaces to write notes for themselves to be passed on, so they do not have to repeat themselves at every appointment. All these things in one place help people who are not feeling at their best to navigate an unfamiliar medical world and have more confidence that the decisions that they are making are the best ones for them. We know from working with patients and getting their feedback that this is the sort of information that terminally ill people will need to support them making decisions around their end of life.
I describe all this to illustrate that this information needs to be very carefully put together, and I know that it takes time. It takes about a year or so to do all the background research, design and test with a range of real patients and relatives—and possibly longer in this case, because it will need to be quite personalised and kept up to date because of the geographical variations and provisions of different options provided by different providers, such as those you find in palliative care. Of course, that time and that team doing that work will need to be funded, and the final versions will need to be approved and then kept constantly up to date. That is why I have proposed Amendment 144A, to ensure that this very important job is overseen by the assisted dying commissioner; with their legal background and the current job description in the Bill, they should have the means to request the right amount of resourcing from the Government to make sure that this information is produced to the right standard and well maintained.
I do not think anyone in this Chamber or outside would disagree that having balanced, personalised information about options in a suitable format for everybody, whatever their disabilities, is critical to this Bill—and I do not think that anyone will, having heard what that takes, underestimate the amount of work that it will entail. There will be a lot of people who might want to persuade patients rather than inform them around this decision, which makes it particularly important that official information is produced carefully, overseen and kept up to date. Currently in this Bill, it is not entirely clear whose responsibility this commissioning of information provision would be. When we make them, we are commissioned by a team within NHS England, but it does not just spontaneously happen, even within the NHS. It is unclear to me whose responsibility it will be when NHS England disbands, for example, and an assisted dying service may be outside the NHS. That is why it is important that this Bill specifically assigns this critical responsibility, and the best person—the only person with the specific ability to ensure funds—appears to be the proposed assisted dying commissioner.
Lord Moylan (Con)
My Lords, I rise to speak briefly to my Amendment 134, which is a probing amendment. The noble Lord, Lord Weir, drew our attention to Clause 4(4), which sets out what he referred to as the functions of the assisted dying commissioner. In fact, the text refers to the “principal functions”, and my amendment suggests replacing the word “principal” with “sole”. Those functions are very extensive; they are elaborated in, among other places, Schedules 1 and 2 and Clauses 16, 18 and 49. They are, as I say, very extensive. They include in Schedule 1 a general power to do anything which may be necessary or appropriate for the commissioner to do in order to be able to carry out his functions. He is not short of responsibilities and he is not short of powers to be able to carry them out, yet in the Bill these are described as his “principal” functions.
So my first question to the noble and learned Lord is: are there are any other functions? Would anything be lost by changing the word “principal” to “sole”? Does he consider that there are secondary functions that the assisted dying commissioner has? Many of us are concerned that the voluntary assisted dying commissioner could easily become an advocate for change to the framework that we are establishing in the Bill. In particular, it may be found that some requirements set out in the Bill are irksome and difficult and take time. Of course, that is quite deliberate. The noble and learned Lord has set up a structure that is not meant to be easy to navigate, quite deliberately. This is not an easy structure to navigate and it may well be that, when the assisted dying commissioner comes out with his annual report—because he has to produce annual accounts, and I am sure that the report will contain things over and above purely financial figures—he will suggest changes and relaxations, and so forth. He cannot make those changes and relaxations, mostly, on his own—but we do not want, if we establish this Bill, to which many of us are strongly opposed, an officially paid and highly regarded advocate for the relaxation of the safeguards that we have built in to be operating out there.
So I come back to the question: first of all, does the noble and learned Lord want to say whether he considers there are other functions over and above those set out in the Bill, taking account of the general power I have already mentioned? Secondly, will he give us some assurance that he does not see this role as being that of an advocate for relaxation or change?
Lord Frost (Non-Afl)
My Lords, I shall speak to Amendments 135 and 436 in my name. These two amendments relate to one of the specific functions just elaborated by the noble Lord, Lord Moylan. Amendment 135 would create in Clause 4 a specific duty on the commissioner of ensuring that paperwork relating to individual cases is in order and of the right quality so that the process can proceed. As the amendment puts it, the paperwork should be
“present, complete and of sufficient standard”.
Amendment 436 would create in Clause 16 an elaboration of what that duty means in practice: that is, to request further and improved paperwork if it is not in order and, in particular, if any doubt exists over whether eligibility criteria are met.
Why are these amendments necessary? It is a very specific issue, clearly, but the commissioner has a function, inter alia, to receive documents, refer cases and so on, which is obviously crucial to the working of this process. As described, that function implicitly includes ensuring that the documentation is in order, but that is not made explicit anywhere in the Bill. The purpose of the amendments is to make that requirement explicit, and to create a clear legal duty on the commissioner to ensure that the paperwork is of a sufficient standard.
Lord Evans of Rainow (Con)
My Lords, my Amendment 144 relates to those tabled by my noble friend Lord Frost, who has made many of the points I was about to make. To add to what my noble friend has said, he used the word “paperwork” all the way through his remarks, and he outlined its importance. The point I would make, over and above what my noble friend has just said, is that the NHS has a notorious reputation with regard to paperwork. How many times have we heard about the loss of patients’ medical records and—as my noble friend just said—that the medical records are inaccurate?
Many hours have been spent in this House talking about the digitisation of NHS paperwork. The Bill is an excellent opportunity to say to the NHS—or whoever takes responsibility for this process—that when people go for consultations, they should be done digitally, by which I mean that we do not use a pen and paper. Doctors’ handwriting is notoriously difficult to read; it must be transcribed and digitised by second parties, so mistakes and errors will happen—that is one of the reasons why there are so many errors in medical records.
I say briefly to the noble and learned Lord, Lord Falconer, that this House should insist that the Bill requires this to be done digitally. When clinicians interview vulnerable people, that should be instantly recorded there and then on a tablet, iPad or computer, which will therefore reduce the number of errors. The paperwork is so important, and this is an opportunity for the NHS to step up to the plate and, of all things, digitise the records for people making the decision to end their life.
Baroness Finlay of Llandaff (CB)
My Lords, I have two amendments in this group. Amendment 139 simply requires the commissioner to report to Parliament, and in Amendment 913 I have tried to ensure the independence and freedom from bias of the commissioner and staff. The voluntary assisted dying commissioner, as the public figurehead of an assisted death regime, must be free from any whiff of conflict of interest or perceived bias.
Conflicts of interest can be direct, such as the commissioner having shares in a provider of assisted deaths, when increased deaths are profitable. However, as NHS England’s standards of business conduct point out, perceived conflicts of interest can also present problems, and all interests must be declared. NHS England’s policy states:
“Officers should be mindful of any situation where relationships may give rise to a perception that a loyalty, credit, or responsibility is owed to another person or body”.
It goes on to say that
“previous employment with an employer which directly or indirectly provides services or products”
could be seen to be an influential factor.
The noble Lord, Lord Weir, has addressed the functions of the commissioner; I will not repeat what he said, but I will add a few points. Appointments to panels must not be biased to those sympathetic to assisted death, and they must also avoid those who have publicly expressed some scepticism. The commissioner is to review appeals, and bias can creep in here. Failure to follow statutory safeguards could be viewed leniently, and we have already heard examples of that from the noble Lord, Lord Frost. Highlighting failures in panels would reflect badly on the commissioner who had appointed them. In reviewing and reporting on the operation, the whole regime could skew reporting, because it is not clear which stakeholder groups will be consulted, or which data will be collected and what will be omitted—again, that could leave room for bias.
The amendment simply embodies the principle set out in the Cabinet Office’s Governance Code on Public Appointments that there should be
“no conflicts of interest that would call into question their ability to perform the role”.
Can the Minister confirm that these standards would be adhered to in any appointment? The governance code states that many conflicts of interest could be satisfactorily resolved and mitigated, giving the Prime Minister much discretion. Could a mitigation allow an assisted suicide organisation’s patron to serve as the commissioner? This is not purely hypothetical. In Belgium, the joint head of the Federal Commission for the Control and Evaluation of Euthanasia was one of the leading proponents of the 2002 law there. Since then, it has euthanised more than 100 patients and become something of a celebrity. That reputation has caused controversy. We have already heard about underreporting—
Lord Markham (Con)
Is there not a critical difference, when we talk about conflicts of interest, in that, in this case, this will be law—something that has been passed by Parliament? I do not believe that, in any public appointment, being supportive of a law of the land is deemed to be a conflict of interest.
Baroness Finlay of Llandaff (CB)
The point that I was trying to make, and I am sorry if I have not expressed it properly, is that there is a huge amount of discretion here and the commissioner will be the person who appoints the panels. In a way, by assessing the work of the panels, the commissioner will be marking his or her own homework. That does not provide the independence that one would require.
If I may go on, we heard too in our Select Committee hearing, which the noble Lord was present at, about problems that have occurred in New Zealand. These need to be taken as a warning: we must ensure that there is independent transparency and lack of bias in the commission, through statutory safeguards, to avoid the failures that occurred in other countries. In the case of Mortier v Belgium, the European court—
Baroness Whitaker (Lab)
I apologise for interrupting, but I am a little confused. It seems that there is a considerable principled difference between expertise and conflict of interest. People who have been involved in assisted dying have expertise; they do not necessarily have a conflict of interest. You can be a professional, as I am sure the noble Baroness well understands, and be independent, so why is expertise ruled out?
Baroness Finlay of Llandaff (CB)
I am grateful to the noble Baroness for that intervention, because expertise is not ruled out. It is the way that the commission functions that is important—that that does not allow skewing and silencing. What I was going on to point out is that one of the commissioners on the Belgian commission resigned because they felt that they were being silenced whenever they raised issues about problems in reporting, that they were unable to continue to provide ethically high standards and that their own expertise was not being respected.
I would be grateful if I could just continue for a moment, because I am not trying to filibuster. I would like to make that absolutely clear, following the extremely unpleasant, vicious comments that have been made about me, both in the media and in very aggressive emails that have been sent to me. If I may continue, I would be most grateful.
I am simply asking whether a commissioner with a financial interest in an assisted death business, whatever that is and however it is commissioned, is actually truly independent. There seems to be no requirement for the appointment to be scrutinised by a committee of Parliament or for a register of interest to be published. I am sure that that would happen, because that is a normal course of action in this country, but the equality impact assessment seems silent on this. The noble and learned Lord, Lord Garnier, referred to the Constitutional Reform Act 2005 in relation to appointments, so I will not repeat that, but this commissioner’s post appears, as written, to be in the gift of the Prime Minister, and there does not appear to be verified impartiality in terms of the exercise of the functions, given the great importance of this role and the problem that if it does not work well then public confidence in the system will be lost.
Baroness Fox of Buckley (Non-Afl)
My Lords, my remarks follow on, very usefully, from those of the noble Baroness, Lady Finlay of Llandaff. She made some points I was going to make, so I will not make them, but I will make some others.
We should consider the interaction between the rather murky world of politics and the role of the commissioner. I would not raise that issue if this role were not entirely, as I understand it, a political gift of the Prime Minister—effectively a patronage office. We surely all know the problems that can create; it has been rather vividly illustrated in recent months. I want to probe what happens if this goes wrong, or rather how we can stop it going wrong in the first place, because there is genuine concern about a lack of accountability and transparency around the appointment process for the commissioner. For that reason, I added my name to Amendment 126 in the name of the noble Lord, Lord Udny-Lister. He is unable to be here today, but he is spot on to suggest that the appointment should be accompanied by a public statement by the Prime Minister, whoever the Prime Minister is, attesting to the suitability, independence and neutrality of the candidate, so that the Prime Minister is ultimately held to account for this appointment and it is clear why they have made it.
The commissioner has a crucial role, with the power to both run and monitor this service, yet the Bill seems to leave the commissioner’s role open to self-definition. They are appointed by the Prime Minister, and that is it; we are all meant to trust it. I do not want to be cynical, but the question of independence and neutrality is important, because this is a controversial and polarising issue. If we did not think it was, we have only to look at the rather testy atmosphere every Friday in this Chamber, let alone on the airwaves in between. We owe it to the public that they feel that they can trust the process if the Bill is made law.
We have to ask what happens if a partisan figure is chosen—how can that be addressed democratically? What is the process if there is a problem with the conduct of this commissioner? Who is accountable for that? That is one of the reasons I added my name to Amendment 913A in the name of the noble Lord, Lord Wolfson of Tredegar, which seeks ways for anyone with concerns about the conduct of the commissioner to make representations to the Prime Minister. The amendment seeks to probe the process by which the commissioner can be held accountable for their conduct.
That takes me back to neutrality and independence. Let us consider: if we leave this appointment, as the Bill seems to, to the Prime Minister, who is given complete discretion about who to appoint, how will we protect the role from political controversy and being seen as possibly partisan? The noble and learned Lord, Lord Falconer, will not want to compromise the role in that way, I am sure, so some of these amendments might be helpful to insulate it from any accusation of bias.
Lord Hamilton of Epsom (Con)
Is the noble Baroness not concerned, as I am, that we are conflating expertise with bias? People think that because somebody is expert, they are independent. It does not necessarily follow. There could be people who are expert but at the same time very biased in their approach to any subject.
Baroness Fox of Buckley (Non-Afl)
I think that is self-evidently true in the real world, if I can put it that way.
I note that the present Prime Minister is himself personally not neutral. As we now well know, he promised Esther Rantzen that assisted dying would be made legal, although that was not a promise made to the British electorate or in the manifesto, but it was certainly made in public with much singing and dancing. Would the Prime Minister’s personal views influence whom he chose as a commissioner? Noble Lords might think that is far too cynical and I am being grubby—that is fair enough. However, I want to know if there is anything in the Bill that guards against such grubby behaviour, because if anyone thinks there is no grubby behaviour in politics, they need to get out more. If the commissioner is perceived—
Lord Markham (Con)
If I may intervene again, let me say that this is a post which will happen only if the law has been passed by Parliament. I am not aware—but perhaps the noble Baroness can help me—if there is any other public appointment process which says that someone cannot be in favour of the law that they will be in charge of implementing. Is the noble Baroness aware of any others for which that is the case, or is she saying that this should be the only example in which someone cannot be in favour of the law of the land and the job that they have been appointed to do?
Baroness Fox of Buckley (Non-Afl)
I should clarify that I do not anticipate that those who have reservations about assisted dying will be queuing up to be the commissioner. I am not at all arguing that the commissioner could not be an enthusiast, but what happens if they become an activist and an advocate for it, and mission creep follows? That is very different. It is fine if it is somebody who says they voted for it—somebody in this Committee might well be that person, and they might have disagreed with me. How do you stop someone if they say, “Great, I am the commissioner. I am now in charge of monitoring this”, and so on? We have heard good examples so I will not repeat them.
Sorry, I am not sure if the noble Lord, Lord Moylan, wants to intervene, but I am trying to finish.
Baroness Falkner of Margravine (CB)
In response to the question from the noble Lord, Lord Markham, does the noble Baroness agree that senior and significant public appointments always involve an independent assessment panel making a recommendation, but moreover they also involve Select Committees of this House and/or the House of Commons taking evidence? In a recent example from July last year, my successor was questioned interminably, if I can exaggerate a little, by the Women and Equalities Committee over a small donation made years earlier to a campaign group, and she did not win approval from the committee, presumably on that basis. Parliamentary scrutiny and/or the independent panel are profoundly important. Does the noble Baroness agree that these are significant prerequisites?
Baroness Fox of Buckley (Non-Afl)
That is a very helpful intervention. We can therefore see that the process of appointing the commissioner should not simply be in the gift of the Prime Minister and that there are processes—we have illustrated that. The difficulties in relation to accusations of neutrality or partiality and so on will come up in that process. However, at the moment, there is nothing in the Bill that would allow any of that to have come up before the appointment.
I suggest that there are a range of amendments in this group that the noble and learned Lord might want to look at carefully and accept, so that the role can be insulated from party politics, accusations of advocacy and speculation about what if this or that goes wrong. Maybe nothing will go wrong, but if something does go wrong with the commissioner’s conduct or they are seen to be acting as an advocate activist, there is nothing in the Bill that would mean that Parliament could do anything about it. We would just be stuck with it. Can the noble and learned Lord say what checks he sees for impartiality and guardrails against activism in the choice of commissioner and their role? What process will there be to ensure a commissioner’s impartiality in their role, even if not in their personal views? How can we make that guaranteed? How can we hold conduct to the highest account? At the moment, it seems to me there is no mechanism in the Bill to do so. Without that formal oversight, the way the Bill has set out appointing a commissioner is unsafe, and it should be looked at again.
Lord Deben (Con)
My Lords, I have tried in my contributions, which have been few although I have in fact been present for almost every moment of this Bill, to point out to the noble and learned Lord those occasions when his actions can make a great deal of difference. It seems to me that this is one of those.
I have been pressed by the media to speak about the Bill. I have refused every opportunity because I believe that the Bill should be debated in this Committee and there should be no attempt outside to make it difficult for us to say what we need to say in our proper carrying through of our business. If I had appeared on the radio, I would have said that the problem that we face is that there is so much in this Bill that is uncertain, unexplained and left to Ministers and particular appointees that we do not know how the Bill would work in practice.
This is not a question of whether you are on the side of the Bill or against it. It is that we have a duty to make this Bill work. I do not like the Bill and I do not agree with the principle, but I am not speaking from either of those points of view. I am speaking to try to get this Bill to be a suitable Bill to do the job which the promoters want it to do. I much resent the way in which people attack that, as if one is behaving improperly. There has been some disgraceful behaviour attacking one of the most distinguished Members of this Committee, who is knowledgeable and able, with a history of fighting for rights and the kind of behaviour that we should have for the terminally ill and the ill who need palliative care. I hope that the sponsors of the Bill will apologise publicly for what has been said to the noble Baroness, because it is unacceptable.
Let me say why this is perhaps the most important groups that we have had. Outside, there is genuinely held concern about the mechanisms which will make this Bill the safest Bill there is. The person who does this job is clearly not going to be somebody who is against the whole principle. The noble Lord, Lord Markham, is perfectly right that, if this becomes the law, the law will be carried through. The question is whether the person who is going to do this job is someone who will command the respect and support of the nation as a whole. The amendments before us are simply an attempt to find ways of making sure that happens. They are not suggesting that it should be somebody who is opposed to the principle. I cannot imagine anybody applying for it if they do not believe in the principle—I am certainly not going to apply for it myself. The fact of the matter is that it is going to be somebody who supports the Bill and is prepared to carry it through, but that person must have the respect of the public as a whole, and the appointment therefore becomes very important.
I do not want to tread on sad circumstances, but we do not have a terribly good history of appointments in recent years, on both sides of the House, so this is not a party-political comment. It makes it very important to get it right at this point.
There is no question of filibustering in saying to the noble and learned Lord that this is at the heart of the problem. The Bill is supported in principle by many in the organisations that are going to carry it through, but it is opposed in particular by them all because the Bill has not met their concerns.
Baroness Jay of Paddington (Lab)
My Lords, I know I am out of order because I was not here at the beginning of the debate on this amendment, but I feel it is important to say to the noble Lord that I was not grimacing at the point he was making.
Baroness Jay of Paddington (Lab)
I am going to continue with this point, because it is a general point that there has been very limited discussion on the amendments since I have come into the House.
Baroness in Waiting/Government Whip (Baroness Anderson of Stoke-on-Trent) (Lab)
My Lords, I am reluctant to stand up as my noble friend was referred to. Having said that, I think it will benefit every Member of the Committee if we continue with the debate.
Lord Deben (Con)
I think it perfectly right for the noble Baroness to have intervened because I referred to her, and I apologise.
I want the noble and learned Lord proposing the Bill to face three issues that are centred around these amendments—which I am dealing with, I say to the Whip. These amendments are trying to meet the genuine concerns of people who are not necessarily opposed to the Bill. They want to make sure that this key person knows what his or her job is, is appointed in a way the public can have confidence in, and is not the harbinger of what has been called mission creep. Those are three very simple things to ask for.
This is the thing that really worries me. I say this directly to the noble and learned Lord, Lord Falconer. I cannot understand why, at the beginning of the Bill’s passage, he did not say, “First, we know that there is a problem that it used to be thought this Bill had a judicial element to it and it does not now, and I am prepared to look at how to change that. Secondly, we know that the professional bodies have real concerns, and I am going to present my answers to those. Thirdly, I know that there is much in this Bill that is not specific enough, which is why the Select Committees have said it is inappropriate and unacceptable in its present form, and I will put those things right”. Had he said those three things, we would have been a long way forward with the Bill.
Therefore, the Bill is being held up not by filibustering but by the fact that the people who have put it forward are so determined that it will pass that they are not willing, it seems to me, to listen to reasonable comments—even from people who have restrained themselves from entering into the bear garden they have managed to stir up in the media.
Lord Sandhurst (Con)
My Lords, Amendments 430 and 434 in my name go to the practice in operation. I will introduce them by making this point. I was one of the seven people fortunate enough to be identified in the Observer a couple of weeks ago as having tabled a lot of amendments. Contrary to what the Observer—and the quite numerous hostile messages I have received by letter or email—suggested, these amendments, together with all the others I have tabled, except for two relating to the victims of industrial disease, were put forward by the Law Society of England and Wales and by the CLADD group at King’s College London. The latter, for those who were not here the other week, is a group of a distinguished psychiatrist, psychologist, social scientist and lawyer with a particular interest in this and related issues. They and the Law Society are neutral on the principle of the Bill but want to see a safe and effective Bill. Amendments 430 and 434, together with others I have tabled, are aimed at that.
Amendment 430, some will be pleased to see—others will not—is for a streamlined, non-panel basis. It would insert a new clause saying:
“This section applies where the Commissioner receives … a first declaration … a report about the first assessment … which contains a statement indicating that the coordinating professional is satisfied as to all of the matters … a report about the second assessment of the person which contains a statement indicating that the independent professional is satisfied as to all of the matters … The Commissioner must, as soon as reasonably practicable, consider the person’s eligibility to be provided with assistance”.
He or she may then
“consider the person’s eligibility personally … refer the person’s case to a person qualified to sit on the Assisted Dying Review Panel”,
or
“refer the person’s case to a multidisciplinary panel”.
In practice, this means that it would be a modified procedure where there is agreement between the co-ordinating and independent professionals. The commissioner could then consider the application alone or refer it to the panel, so it would not necessarily have to go to the panel. A full panel would be mandated only if the independent professional is not in agreement with the co-ordinating professional that the criteria are met, or if it becomes clear during the modified procedure that further evidence is needed.
Some of those who are not in favour of the Bill may be concerned that this amendment could potentially weaken the process. I remind the Committee that Dame Caroline Swift, latterly a High Court judge but formerly lead counsel in the Shipman Inquiry, has said she is afraid that safeguards on assisted dying are likely to be eroded. We have to be very careful, because Dame Caroline Swift was right at the sharp end of looking at this. That is important, as she has seen what happens with a rogue doctor. She said:
“Those safeguards may seem adequate now but they are likely to be eroded over time. As Leading Counsel to the Shipman Inquiry, I saw how this had happened with the safeguards for the issuing of cremation certificates … Over the years, the second doctor’s role became diluted, they were seldom independent of the first, rarely examined the body and the signing of the second form became little more than a ‘tick box exercise’”.
My Amendment 430 might later be at risk of leading to dilution, but I hope it is an indication that there might—in clear cases, where everyone is agreed early on—be a way of moving it on swiftly, to the advantage of someone who is really anxious to go down this course and has capacity and all the other requirements. I hope that will be seen as a positive move and not a wrecker’s move. I am surprised that no one has come to me since this was tabled and said, “That’s a good idea; we’ll stick it in the Bill”.
Amendment 434 would amend Clause 16 and is simply intended to make it clear beyond doubt that referral to the panel is mandatory wherever the independent professional is not satisfied that all the requirements are met. The Law Society believes, and I agree, that as it stands it is not necessarily mandatory, and it should be. So, I ask rhetorically, why not? Are these not both jolly good amendments?
Baroness O'Loan (CB)
I will speak to Amendment 146, tabled in my name and the name of the noble Baroness, Lady Eaton, but before I do so, in the interests of brevity, I say that I support all that has been said in the context of the appointment of the commissioner. This cannot be a personal prime ministerial appointment; it cannot be a matter of patronage. The role must be insulated from day-to-day politics, especially given the risk of damage to trust in nurses, doctors, the judiciary and in this new process by which the state enables the taking of life. I agree, too, with the amendments which seek to introduce some process to the actual appointment of the commissioner, and I agree with the amendments in relation to conflicts of interest and registers of interests.
Through Amendment 132, the noble Baroness, Lady Cass, seeks to establish conclusively that the commissioner’s principal functions are monitoring and reporting on the assisted dying process. Her Amendment 122 would introduce a new role, that of director, who will put the assisted dying regime into action, selecting and overseeing panels, receiving applications, and deciding on appeals and the other duties in Clause 44. Both the British Association of Social Workers and the Law Society gave evidence that an independent regulator for VAD was essential. In Amendment 128, the noble Baroness, Lady Foster, who is not able to be with us today, identifies necessary duties which would provide additional safeguards, ensuring compliance, identifying risk and identifying the circumstances in which things may go wrong with possible tragic consequences.
I want to speak to Amendment 146—the noble Baroness, Lady Eaton, is unable to be with us today—which is about the very specific risk to people in care and nursing homes, the majority of whom are vulnerable for one reason or another. The situation of care homes is a matter which the noble Baroness and I have raised repeatedly during the course of the Bill. This amendment develops an obligation which would be imposed by the noble Baroness’s Amendment 128, requiring identification and mitigation of risk. It imposes a duty on the commissioner to monitor and identify emerging risk in the operation of assisted dying in registered care or nursing homes, and to take reasonable and proportionate steps to prevent or mitigate that risk. Where such risk appears systemic, the commissioner must notify the Secretary of State for Health and Social Care, so that appropriate remedial action can be taken.
The issues of vulnerability and capacity, the risk of coercion and the risk of abuse are all particularly relevant to care and nursing homes. Can the noble and learned Lord, Lord Falconer, assure the Committee that these matters really have been properly considered and provided for? I have some difficulty, because the scope of the issue is massive. In 2023, the year for which there are the latest official figures, nearly 400,000 people lived in some 15,000 care and nursing homes in England and Wales. Some 85.7% of the total number of beds in care homes were occupied at the time of the survey. Some 70% of all care home residents have dementia or severe memory problems. The average period of residence in a care home is about two and a half years, and most of them die in the homes. Those figures will have increased in the three years since they became available. Some 120,000 people a year over 75 are diagnosed with cancer. There will therefore be a significant number, possibly the largest cohort in England and Wales, with a terminal illness—however you define it—who will have a prognosis of six months or less to live, and who live in our care homes. On the basis of these figures, it is possible to extrapolate that tens of thousands of people living in care homes will be eligible for assisted dying.
Lord Morrow (DUP)
My Lords, Amendment 146A in my name requires the voluntary assisted dying commissioner to have particular regard to the right to life under Article 2 of the European Convention on Human Rights when carrying out their functions under the Bill.
In tabling the amendment, I recognise that, under Section 6 of the Human Rights Act 1998, public bodies are required to act in a way that is compatible with each of the convention rights. I can appreciate somebody attempting to argue that this amendment is unnecessary, but, as noble Lords will understand, Section 6 of the Human Rights Act sets a minimum floor for public bodies—they must act compatibly with the convention—but it does not provide a method for decision-making. It does not tell them how much weight to give a specific right in a particular statutory context. Without any further guidance, the balancing exercise between rights is left in the hands of the public body, with the court subsequently determining the legitimacy of the decision by a judicial review after the Bill becomes an Act.
However, in this life and death matter, we cannot wait until after the Bill is passed and until people have lost their lives; nor should we leave the question of balance solely to the courts. Parliament must take ownership and give a steer and signal to which issues matter most. Historically we have done this through “particular regard” clauses. To provide just one example, under Section 22 of the Online Safety Act, we require Ofcom
“to have particular regard to the importance of protecting users’ right to freedom of expression within the law”.
Given the concerns that freedom of expression often loses out to risk aversion or administrative convenience, we made it clear that any justification to restrict content must consciously and explicitly address Article 10 rights. In effect, the clause has Parliament take the policy choice demanded under the ECHR, rather than leaving it to unforeseeable Ofcom decisions.
Turning to the context of the Bill before us, and the reason I have tabled this amendment, I am troubled that concerns around the Article 2 right to life have too often been squeezed out of this debate. Instead, attention has been fixed on the question of whether the safeguards, which many of us consider essential to protect the lives of those vulnerable to comorbidities or potential coercion, would restrict access to assisted suicide and so impinge on the Article 8 right to family life and privacy.
I am far from alone in having this concern. Last November, after providing evidence to the Select Committee that considered this Bill, the Equality and Human Rights Commission’s Alasdair Henderson wrote to the chair of the Select Committee to reiterate the exact issue I have just raised. He said that the Government’s equality impact assessment
“does not strike the right balance as it mainly focuses on access issues. It provides more limited information on the potential risks, such as those around safeguarding and coercion, which might affect people with different protected characteristics”.
The same marginalisation of Article 2 is present in the Government’s human rights memorandum on the Bill. Several key concerns around Article 2 raised by experts in the field are simply ignored. Let me provide two brief examples to illustrate my point. First, the memorandum defends the lack of a statutory appeal for family members who might raise new evidence of coercion or other factors influencing the decision, on the grounds that it is necessary and
“proportionate to ensure the process is not frustrated through lengthy legal challenges”
and to protect
“the article 8 right of a person to choose the time and manner of their death”.
But, shockingly, the memorandum makes no reference to the Article 2 right to life that may be impinged should the panel overlook an important influencing factor.
Secondly—I raised this point at Second Reading—the memorandum fails to engage with the concern raised by Tom Cross KC and the EHRC that the Bill
“unjustifiably discriminates against those persons whose disabilities manifest in the expression of suicidal ideation”,
in so far as it lacks a mechanism to clearly distinguish whether their wish to die is a manifestation of their disability or a genuine decision unrelated to their disability. Consequently, in their opinion, as it stands, the Bill could well breach Article 14 as well as Article 2.
Again, the Government seem to have ignored this concern. The Minister, the noble Baroness, Lady Merron, said in a Written Answer on 14 July that the Government were “aware” of Tom Cross KC’s advice when updating their memorandum but chose to not to “reference it”—I find that significant. She assured the House that
“the Government has set out the articles of the ECHR which it considers are likely engaged by the bill, including Article 14 together with Article 2”.
For the sake of time, I will ask the Minister something directly today. She will remember that a few weeks ago the noble Baroness, Lady Falkner, a former chair of the Equality and Human Rights Commission, called on the Government to update their equality impact assessment in line with the request of nearly 60 Members of this House. As the noble Baroness’s question was raised during the Clause 1 stand part debate, the Minister did not have the opportunity to respond. Will she do so now and explain why the Government do not seem to be following the usual guidance set out in the Cabinet Office’s Guide to Making Legislation in failing to update their impact assessment?
Returning to my argument, I think that the Government addressing these concerns around Article 2 would help correct the unhelpful impression that these are not things to be concerned about. I am worried, as I suspect others are, by the impression given at the Dispatch Box each week that safeguards are perceived basically as a barrier to equal access rather than as a justifiable and proportionate measure to protect life, which the state is obliged to do. I believe we are in danger of forgetting that it is the Article 2 right against being intentionally deprived of life by the state that is absolute, and not Article 8.
This is a dangerous place to be. The Government may indeed be neutral on the matter and claim they are just setting out what is possible with the margin of appreciation afforded by the Strasbourg court. However, as Amendments 126 and 913 remind us, the voluntary assisted dying commissioner may well not be neutral, as has already been mentioned. Indeed, they could be an advocate of assisted dying who wants to see the expansion of the regime and the erosion of safeguards.
My fear is that if the Government send the message that Article 2 does not matter, because Strasbourg has ruled that legalising assisted suicide is within the margin of appreciation of any state, rather than emphasising that the position only stands on the quality and implementation of each law’s safeguards, then we risk giving the commissioner a green light to push boundaries, potentially beyond the limits of Article 2, and only finding out after they have been breached—much too late, as I am sure everyone will agree. It must be the latter, and I urge the sponsor of the Bill to send that important message. I trust that the Minister will take time today to address that issue.
Baroness Maclean of Redditch (Con)
My Lords, I will speak to Amendments 145 and 439 standing in my name. It is good that I previously gave way to the noble Baroness, Lady O’Loan, who is no longer in her place, because she covered a lot of the points that I was going to make about care homes.
This is the first time I have spoken in Committee, even though I have attended virtually every day of the proceedings. Lots of people spoke earlier about their personal experiences. I do not intend to go into extensive detail, but I want the Committee to know that I have, for the past eight years, had power of attorney for my 88 year-old mother, who has been in a care home for that time. She has advanced dementia. She cannot speak, read or write. She does not know who I am. So, I have first-hand, practical experience of fluctuations in capacity and how that can be dramatic, from one day to the next. I come at this from a very practical, family-based perspective as well. Those of us who are former MPs have seen those family situations in our surgeries. That is where I am coming from. We need to make sure that family and care home staff always have the best interests of patients, such as my mother, at heart, as I know that they would wish to—but we just do not know what those interests are in my mother’s case, given that she simply cannot communicate.
My Amendment 145 is very much in line with what has already been said about the appointment of the very important role of the voluntary assisted dying commissioner. The noble and learned Lord, Lord Garnier, the noble Baroness, Lady Finlay, and others have already mentioned ways in which we can ensure that public trust is commanded by the appointment of this person. It may well be that there are better ways of achieving this than my amendment. I urge the sponsor of the Bill, the noble and learned Lord, Lord Falconer, to come back to the points raised by a good number of us.
I suggest that the Cabinet Office should create and maintain a register of interest for the commissioner’s office and the panel members. This appointment is solely in the authority of the Prime Minister, as the noble Baroness, Lady Fox, remarked. This is very important for public trust. It does not matter which Government are in office; we must have transparency and confidence when this person is appointed. The noble and learned Lord, Lord Garnier, suggested that this should be an appointment by His Majesty. It may be that that is a more effective way of achieving the end result.
My Amendment 439 has not been discussed in detail so far in this group. It would require the commissioner to notify specified and interested parties of a person’s referral to an assisted dying panel. Here, the noble and learned Lord, Lord Falconer, will be aware of practice direction 9B in the Court of Protection Rules. That is where we are coming from with the amendment. It states:
“The applicant must seek to identify at least three persons who are likely to have an interest in being notified that an application form has been issued”.
The direction goes on to make clear it that ordinarily, although there are some exceptions, close family are
“likely to have an interest in being notified”.
This can then enable them, if appropriate, to submit a formal witness statement to the court.
I cannot understand why it should be any different here. Assisted dying panels are given extensive powers to make judgments under the Mental Capacity Act 2005, just like the Court of Protection. Surely the same powers of notification and, for that matter, summoning witnesses should apply. If the sponsor does not agree with this or cannot accept it, perhaps he can explain why he thinks that the panel process should be more secretive than the Court of Protection proceedings.
This brings me to the importance of emphasising how important it is to involve families in these significant decisions. One of the problems with the Bill is that it seems to treat assisted suicide as an entirely autonomous decision that can be considered in isolation from the context of other complex care needs. Those of us who have first-hand experience with loved ones will know that this could well be a patient crying out for further support in some way—with their care needs, how they feel or their emotions in that moment. I raise this because the NHS guidance on complex care planning repeatedly emphasises the involvement of family and how important that is. I quote NHS England’s guidance:
“It is important to involve families and carers in decisions about … someone’s care and support (with permission of the person being cared for) … It is important to be led by the person, with their family, carers or supporters, to make sure they can be involved in decision making”.
Similarly, the statutory guidance under the Care Act promotes a whole-family approach to assessment. That is a principle that I am sure we all recognise—that the provision of care involves several parties, including the family, who also need to be supported. This is significant, because many people who request assisted suicide express the concern that they feel a burden. We have heard that expressed time and again in these proceedings. It may well be that if discussions involved family or carers, which then allowed further support to be offered, that motivation would disappear.
Before I sit down, I will address the objection that there might be circumstances when, it is argued, the family should not be notified, perhaps most obviously in an instance when they express the view that they do not want that. I accept that the Court of Protection Rules I referred to provide a certain degree of discretion as to which relatives are notified, considering who is practically closest to the person. The rules also include a provision that is entirely absent in the Bill:
“Where the applicant chooses not to notify a person listed in paragraph 7 … the evidence in support of the application form must also set out why that person was not notified”.
That same exploration and recording requirement on this point is set out for social workers in the NICE guideline on social work with adults experiencing complex needs, and there are good reasons for this. When a person does not want their next of kin to be involved, it might be a red flag that could indicate coercion, an inheritance dispute or some other significant issue. That should be a material fact that is taken into account by the panel.
This somewhat anticipates Amendment 389 in the name of the noble Baroness, Lady Gray of Tottenham, in another group, which would require the assessing doctor to discuss—although not record—the reasons why a person does not want to notify their family. As it connects to my amendment in this group, I ask the sponsor, if he is not minded to accept my amendment because it does not allow the person to decide whether they want their family involved, why the Bill does not include an explicit recording requirement on their exclusion in line with the usual practice.
Lord Stevens of Birmingham (CB)
My Lords, contrary to Amendment 129, I think that the Bill gets it right in requiring, at Clause 4(3), that the voluntary assisted dying commissioner must hold or have held office as a judge of the High Court, the Court of Appeal or the Supreme Court. This is quite clearly not a medical role. Its principal functions are to ensure that the statutory processes and safeguards that Parliament would have established are being adhered to.
However, we have to accept that a postholder having been a judge does not automatically mean that they will not come with personal views about the scope of the law that Parliament has passed. Therefore, the debate that the Committee has just had on how to make sure that there is transparency about the views that such an individual might hold before their appointment is ratified has merit.
For example, I was very struck by an important interview that the noble and learned Baroness, Lady Hale of Richmond, the former President of the Supreme Court, gave in Prospect magazine in December 2024. She recorded that, in the case, for example, of Tony Nicklinson back in 2014, who wanted it to be declared that it was lawful for people to assist him to take his own life because he had a disabling illness but was not terminally ill, two Justices of the Supreme Court
“would have been prepared to make a declaration that the current law on assisting suicide was incompatible with the Human Rights Convention”.
She went on to say:
“There were nine of us on the court. Of that, five of us took the view that when the time was right, the court might make such a declaration of incompatibility. But three of those five thought the time was not yet right”.
I infer from that that—at that particular point in time, anyway—five Justices of the Supreme Court would have taken the view that the Bill before us, if passed by Parliament, would fall foul of their reading of the European convention.
It is helpful to think about the mechanisms by which Parliament could know the views of such judges, were they to be put forward for appointment as the voluntary assisted dying commissioner. The thrust of Amendment 127 in the name of the noble Lord, Lord Beith, therefore has merit. It would require, for example, pre-appointment hearings by one or more Select Committees in the House of Commons, which would give us an opportunity to probe these questions and make sure that a nominee was going to stick to the faithful implementation of the legislation that Parliament, after such careful deliberation, would have produced, rather than, for example, interpreting the role of the voluntary assisted dying commissioner as in some way akin to that of the Children’s Commissioner, which is clearly an advocacy role for the rights of children.
Baroness Coffey (Con)
My Lords, this is a really important clause and a really important schedule. This is the one time when a judge, whether they are current or retired, will be involved in any of this process after the Commons chose to strip judges away from the original proposal. I have tabled stand part notices opposing Clause 1 and Schedule 4 because I would prefer a judge-led process; I have a lot of sympathy with what the noble Lord, Lord Carlile, articulated several weeks ago.
Let me say at the start that I disagree completely with the idea from the noble Baroness, Lady Cass, that this role should start to become like that of the Children’s Commissioner, the Victims’ Commissioner or similar. That is simply not the case, and not only because the legal powers in the Bill—in Clause 18, in particular— are where they must make judgments on whether there have been errors of law in the panellists’ determination. I am very keen, which is why I have tabled Amendment 913ZD, for us to get this back in focus, particularly in terms of the commissioner’s role, and to think about this person being a judge, not the Secretary of State.
I agree that it should be the Lord Chancellor so, to some extent, I agree with the noble Lord, Lord Beith, that Select Committees of Parliament should be able to go through this process as well; it should be the Ministry of Justice and the relevant committee in the Commons. There is precedent here. I think it was the noble Lord, Lord Tyrie, who managed to get a determination role for the Treasury Committee so that it had, in law, a power of veto on the appointment of the chair of a body; I think it was the CMA, but I cannot quite recall it right now. So there is a precedent in this regard.
I agree with what the noble Lord, Lord Stevens, just said. The Bill is right, in that it should be a retired judge. There are a lot of views and a variety of opinions on this. So far, only one retired judge, as far as I have been able to ascertain, has come out publicly against the Bill. Those who have expressed views are, as has just been articulated, very much in favour of the Bill; in fact, they think it should go a lot further. So some sensitivity will be required by whoever gets to make the decision on who the commissioner should be.
My noble and learned friend Lord Garnier would like this role to be done by His Majesty. There is a certain irony there. It is good to see so many Lords Spiritual here. I did try to see whether I could table an amendment to strip out, at the very beginning of the Bill,
“with the advice and consent of the Lords Spiritual and Temporal”,
but the Lords Spiritual have already been very clear that they do not, and will not, consent to the Bill. Why, then, should we put the onus to make this appointment on the Supreme Governor of the Church of England? I appreciate that there have been some difficulties with the current Prime Minister and his appointments recently, but I would be surprised if anything quite so careless happened again with future appointments concerning this or other approaches. More broadly, I support their proposals to get this into the public appointments process.
On Amendment 134, I support my noble friend Lord Moylan completely in trying to prevent mission creep. That is a risk, which is why I have tabled Amendments 913ZA to 913ZD and 914A to 914C as probing amendments. Schedule 1 to the Bill says that, basically, the Secretary of State will hand over as much money as they see fit. They will decide on pay and pension arrangements and will give people offices—all the things one might expect of a sole corporation. As far as I can tell, none of the employees will be civil servants, unless they are seconded civil servants.
Baroness Lawlor (Con)
My Lords, I was going to speak to Amendment 146, in the name of my noble friend Lady Eaton, to which I have added my name. It concerns care homes and a duty on the commissioner to identify and monitor emerging risk and report systemic risk to the Secretary of State so that preventive steps can be taken. However, as the noble Baroness, Lady O’Loan, has so ably introduced it, I simply convey the apologies from my noble friend Lady Eaton, who sent them last night.
The other amendments that I support in this group—Amendments 436, 439 and 913—I will not go into, in the interests of parity. The last one is about conflict of interest. The others seek to put a duty on the commissioners to serve as an extra safeguard, so that the exercise of the commissioner will not simply be to tick boxes but to request further paperwork if necessary, or that the families will be notified, as in the amendment tabled by my noble friend Lady Maclean. That can act as a trigger for a discussion with the families and perhaps prevent the coercion which can happen.
Amendment 913 seeks to prevent those involved with organisations promoting assisted dying, whether as volunteers or employees, being a commissioner, a deputy commissioner or on the staff. There is a conflict of interest if those who have a responsibility for seeing that procedures for assisted suicide are not abused should themselves be actively committed to the cause of promoting assisted suicide. The conflict of interest is so self-evident. I imagine that it is an oversight that a clause to this effect was not included in the original Bill. Perhaps the noble and learned Lord, the sponsor, could comment on that and tell us whether he envisages a conflict of interest and how best we can prevent it.
I associate myself with the very strong expression of support for the noble Baroness, Lady Finlay, who tabled Amendment 913. The support was to give sympathy against the attack on one of the leading medical authorities in this country—a specialist in palliative care who has put her knowledge, expertise and time at the service of those most in need of palliative care. She has done so with her time and her knowledge. Not only that but she has served this country in all kinds of ways: teaching students, seeing patients and building up her profession, which is one of the most important specialisms in medicine. She also gives such service to this House, giving her time selflessly, with her knowledgeable contributions and in sitting on the Woolsack, night after night. We owe her an enormous debt of gratitude, not only in this Chamber but in the whole country.
Baroness Grey-Thompson (CB)
My Lords, I have two amendments in this group, the first of which is Amendment 125. I am concerned because the Bill as it stands leaves the responsibility of appointing the commissioner to the Prime Minister alone, with no guarantee of the usual safeguards that are applied to public appointments. As a Cross-Bencher and someone who has been through the independent process— I owe my seat in the Chamber to that process— I believe it is vital.
In October 2025, the Cabinet Office released an updated Governance Code on Public Appointments. The first two requirements are for integrity and openness: Ministers must declare and resolve any interests and relationships, and the processes for making public appointments should be open and transparent. My amendment seeks to bring more transparency and openness, but would leave the final decision with the Prime Minister—once, of course, they have consulted with Welsh Ministers.
There are no such requirements in the Bill for this, just that the commissioner must hold, or have held, office as a judge of the Supreme Court, the Court of Appeal or the High Court. That is a reasonable assumption. However, there is no requirement for the commissioner to declare and resolve any interests and relationships or for the appointment process to be open and transparent. We have to declare virtually everything that we do, so it is not inappropriate that the commissioner should have to do so as well.
I strongly agree with the noble Lord, Lord Deben. That person has to command respect. However, the reason I am asking for this is also to safeguard the individual. We see in the amendments today that the Bill is weak on data and reporting provisions.
My noble friend Lady Finlay raised what has happened in New Zealand. Simon O’Connor, a former New Zealand MP, described some troubling incidents there around the two doctors. Dr Dana Wensley resigned due to her concerns regarding serious problems with the committee’s ability to oversee the implementation of assisted suicide and euthanasia. Dr Wensley is an ethicist. Dr Jane Greville, a palliative care specialist, was pushed out, it is thought, because she was raising too many concerns about the operation of the new law. Both Dr Greville and Dr Wensley went public and stated that the committee’s oversight of the law was so limited that wrongful deaths could go undetected. They cited being extremely concerned about how little information they received relating to patient death, leaving them feeling constrained to the point of irrelevance. They both said that the system was so broken that they would not have been able to identify if somebody had wrongly died.
What happens if normal standards are not followed? We can compare it to someone with significant shares in a drug company being able to decide what drugs the National Health Service could use. As others have said, the assisted dying commissioner will have tremendous oversight. They can make appointments to the list of persons eligible to sit on the assisted dying review panels. They can make arrangements in relation to panels, determine applications for reconsideration and monitor the operation of the Act. This role should be defined by Parliament, not by their own ideas. I would like the noble and learned Lord to give assurance that this appointment process will be looked at to see how we can ensure that the Nolan principles for public appointments will be adhered to.
Looking at the possible scenarios, this individual could be called into a meeting with the Chief Medical Officer to discuss the future of palliative care. They will hold a great deal of power in their hands.
At the Lords Select Committee, Justice Minister Sarah Sackman confirmed that there would be no support to engage or challenge the commissioner. I am very interested in the noble and learned Lord’s view on whether legal aid would be possible to do this. In the case of exceptional funding in coroners’ cases, we might have to be in the position where a person is dead before they get any support to challenge the decision that was taken.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, I follow the noble Baroness in speaking to the issue of the commissioner. The shift from the High Court to a commissioner has been compounded. The Bill originally proposed that a High Court judge would authorise every assisted death—a feature initially championed by the Bill’s sponsor in the other place to make the United Kingdom’s law the safest in the world, with robust safeguards. That has changed dramatically and we now have a new structure, with a commissioner appointed by a Prime Minister.
The voluntary assisted dying commissioner is an important role. They will be given powers both to run and monitor the service. This creates the obvious risks of inadequate public scrutiny and independent review. It is judicial in the broad sense of involving a judge, but it does not appear to have a judicial function. The commissioner will both run the service and monitor it, which means that a highly controversial and important service will be run with little proper oversight. The commissioner will be responsible for establishing the regime and overseeing appeals as well as monitoring and reviewing its operation. In effect, as others have said, this allows the commissioner to mark their own homework.
Dr Luke Geoghegan, policy lead of the British Association of Social Workers, told the Select Committee that an independent regulator for VAD was essential. He said:
“The other thing that I think would give assurance is that no public sector organisation should mark its own homework. The voluntary assisted dying service needs robust external inspection”.
In its written evidence, the Law Society said:
“We recommend the establishment of an Independent Monitor to review and report on the operation of the Act annually”.
The commissioner could be an assisted dying campaigner or someone linked to an advocacy group. Other countries have experienced problems when the assisted dying service is run by an advocate, yet nothing in the Bill prevents this risk of conflict of interest.
In the Constitutional Reform Act 2005, the noble and learned Lord, Lord Falconer, developed a new judicial appointments process designed to guarantee an independent, impartial judicial appointments process and an enshrined statutory duty requiring respect for the independence of the judiciary by Ministers. Yet in the office of the commissioner, we see a potential patronage office in the political gift of the Prime Minister without any internal or external safeguards. Can the noble and learned Lord tell the Committee how the commissioner’s impartiality will be guaranteed? Why has he changed his mind on the importance of statutory guarantees of independence? Will the public have any right to know the commissioner’s views?
Amendment 127, in the name of the noble Lord, Lord Beith, would
“make the Prime Minister’s choice for Commissioner subject to scrutiny and approval by the House of Commons’ Health and Social Care Select Committee”.
There is a lack of accountability and transparency around the commissioner’s appointment process, which is entirely in the gift of the Prime Minister. Therefore, I ask the Minister who will respond to this group: have the Government followed Cabinet Office guidelines regarding appointments? The Cabinet Office Guidance: Pre-appointment Scrutiny by House of Commons Select Committees, published in 2019, requires:
“When establishing a new public body, departments should ensure that they consider whether any public appointments to that body would meet the criteria”
for a pre-appointment hearing. It continues:
“They should seek guidance from the Cabinet Office and also discuss this with the relevant select committee Chair in a timely manner before establishment of the new body”.
Can the Minister confirm whether the Government have discussed the matter of a pre-appointment hearing with the Commons Health and Social Care Select Committee?
Lord Harper (Con)
My Lords, I have a couple of points to make on this group of amendments. Let me start on a note of agreement with the Bill’s sponsor, the noble and learned Lord, Lord Falconer, who has in this group Amendment 131A, which would require:
“Before making an appointment under this section, the Prime Minister must consult the Welsh Ministers”.
I think that is a sensible approach. We have had disagreements about whether the Bill should or should not apply to Wales but, given that it does, it is sensible that Welsh Ministers are consulted.
It is worth noting that Welsh Ministers have some views on this matter. Given that we are talking about consulting Welsh Ministers, this is probably the time to note them briefly. In the vote in the Senedd this week, Wales’s Health Minister, one of those who would be consulted, made two points clear. First, he said that the Motion in the Senedd was not a referendum on legalising assisted dying with only this Parliament able to make that decision. He also said—this is important, given that there are those outside this House who pretend that the only people who think this Bill has any flaws are a small number of Peers, when that is not the case—that he voted against the legislative consent Motion because:
“I’m also clear in my own mind that the fundamentals of the bill, as it’s going through Westminster, don’t provide sufficient safeguards for patients”.
The Welsh Health Minister, who would be one of those responsible for helping to implement it, thinks that the Bill currently does not have appropriate safeguards. He went on to say:
“Although the vote yesterday was on the devolved areas ... the net effect is to give powers in Wales to deliver a service that I don’t think I would support if I was operating over the border”.
For all sorts of reasons, it is helpful to consult Welsh Ministers. We have heard from them this week, and they are very clear that this Bill is currently flawed. Therefore, I think we are doing the right thing by scrutinising it, asking questions and putting forward amendments to improve it. We can see that it is not just Members of this House who have concerns; elected Members serving in the Welsh Government also have concerns, and it is worth getting that on the record.
The fundamental thing that I want to talk about is the prime ministerial appointment process in the Bill. I was quite surprised, not particularly that the Prime Minister was making the appointment, but that there was no other process around it. The Bill currently says that the commissioner is to be appointed by the Prime Minister. The one constraint is that:
“The person appointed must hold or have held office as a judge of … the Supreme Court … the Court of Appeal … the High Court”.
Other than that, there is no process set out that the Prime Minister has to follow.
There are two flaws with that. There is the one that the noble Baroness, Lady Fox, set out, which is that, given that this is an area of policy, the Prime Minister may have their own views about the issue and that may influence the person they choose. My noble friend Lord Markham was quite right that the person would simply be implementing the law. The worry is that if you appoint somebody who has a very strong view about the issue and is prepared to use holding this office to prosecute advancing it, which is the concern my noble friend Lord Moylan set out, that is a problem. The concern I have with the Bill as drafted is that the Prime Minister could appoint such a person, and we would have no way of knowing in advance or of testing that person’s views before the appointment was made. We would find out about it only afterwards, and that is a real problem.
Secondly, I am afraid that we have seen examples of the current Prime Minister making staggeringly bad appointments, and the rather obvious one is Lord Mandelson. I see the Minister shaking her head, but it was a shockingly bad appointment. It is an example of a decision being made to appoint somebody and the process being circumvented in order to get the right result. The person appointed to this role is responsible for life and death issues, and as my noble friend Lord Deben said, it is extremely important that they command the confidence of the public—not just people who are in favour of assisted suicide, but those who are against it and who want to see a proper process with proper safeguards, so that that person holds public confidence.
Lord Moylan (Con)
Does my noble friend agree that, given the surreptitious but none the less firm support that the current Prime Minister has shown for this Bill, it is almost impossible to believe that he would not be personally involved in this appointment?
Lord Harper (Con)
I think that is right and that that is a concern. The noble Baroness, Lady Fox, set it out very well. There are two approaches in this group of amendments to deal with that issue, and I want to explain why I have come down on one side rather than the other. There is the approach that my noble and learned friend Lord Garnier set out, which is to take it away from the Prime Minister and make it an appointment by His Majesty the King on advice from the Lord Chancellor. The alternative approach, set out in the amendment proposed by the noble Lord, Lord Beith, is a better one, which is to subject the person concerned to a pre-appointment hearing of a Select Committee.
That is a better approach because it is more transparent. As the noble Baroness, Lady Falkner, set out, it is actually quite a tough process whereby the candidates can be grilled about their views and their qualifications, how they intend to use the role and whether they intend to use it to advance the law in any way. They can be questioned on that. There is also a precedent, as has been mentioned in the debate, I think by my noble friend Lady Coffey: appointments to the Office for Budget Responsibility not only have a pre-appointment hearing by the Treasury Committee, but the Treasury Committee has a veto and has to consent to those appointments before they can be made by the Government. That is a good model.
So rather than changing who makes the appointment, I am content for it to remain a prime ministerial appointment, with the amendment to consult Welsh Ministers, but before the Prime Minister can make such an appointment, we should ensure that there is a pre-appointment hearing by a Select Committee of the House of Commons. I am not convinced that it should necessarily be the Health and Social Care Select Committee, as there is an argument it should be the Justice Committee, given the nature of this role. That is a secondary question, but there should be a pre-appointment hearing where the person’s qualifications and motivations can be interrogated in public, and then that committee can make a decision. It would mean that the Prime Minister could proceed only with the consent of a cross-party committee—whether it should be a committee of just the House of Commons or a joint committee of both Houses may be an issue worth considering. That would achieve what my noble friend Lord Deben was arguing for: a transparent process held in public so that the public can have confidence in the person appointed, and the Prime Minister can then move forward with that appointment, knowing that it is not going to generate an enormous amount of partisan controversy, which is the last thing we want for this important appointment.
So, on balance, I am happy if the noble and learned Lord, Lord Falconer, moves his Amendment 131. I would certainly have no problem with adding that to the Bill. I am attracted to the solution proposed by the noble Lord, Lord Beith: pre-appointment hearings, with the Select Committee having a veto on the appointment, and only when that has taken place can the Prime Minister move forward. If we do that, we will have a robust process in which we can have tremendous confidence.
Lord Carlile of Berriew (CB)
I have listened to two and a quarter hours of debate on this group. I was not really intending to speak, but I am afraid I cannot resist an “I told you so” moment. I am speaking not because I was name-checked by a number of noble Lords in various parts of the House, but because I think it important to emphasise the background for that name-checking.
First, we have been focusing on the appointment of the commissioner, looking only at Clause 4. I say in credit to the noble and learned Lord that it looks as though a large number of your Lordships have not read Schedule 1 to the Bill, because it is an absolute clear fact and matter of law that if the appointment of the voluntary assisted dying commissioner under Clause 4 was done improperly and not objectively, it would immediately be opened to a host of judicial review cases, which would be brought by every interested party or group looking at this issue.
I want to say something quite different, and here comes my “I told you so” moment. Some noble Lords may just about recall that, early in Committee, I proposed Amendment 120, which proposed returning to a court-based model architecture for the Bill: among others, the noble Baroness, Lady Coffey, referred to that earlier. If we were to follow the provisions of Amendments 120 and 137, which would remove Clause 4(4)(b), (c) and (d), we would have a clear, court-based procedure. Amendment 120 could of course be improved, and I think I am going to be given some facilities by the noble and learned Lord to talk to officials in the near future about that and how it might be designed, but it would mean that the voluntary assisted dying commissioner would then have a much more limited role, which would be to monitor the operation of the Act, receive documents under the Act and report, just as other independent reviewers report, on functions that they are placed in some position of authority over.
I suggest to the Committee that we would not need to have spent the last two and a quarter hours having the debate we have had if we had that simple architecture, which would inspire the confidence of being supported by the courts, knowing that this would be subject to normal court, appeal and evidential procedures. Maybe we should come back to that at a later stage. I hope that the noble and learned Lord may change his mind about that once he considers carefully and in detail what has happened this morning.
Lord Hamilton of Epsom (Con)
My Lords, I would like to address the issue of mission creep. I have tabled amendments that come so late in the procedure that I do not think we will ever reach them, but I am concerned that the Bill, if it becomes an Act of Parliament, will morph into something entirely different from what we have all voted on.
I have a confession to make. I voted in the early 1980s for amendments to Lord Steel’s Abortion Bill, which went through at that stage. One of the concerns we had with that Bill was that it would morph into abortion on demand, and abortion on demand was not what we voted for in Parliament. We therefore have to be reassured that this Bill will not do the same thing. I am very concerned that, if it morphed into a euthanasia Bill, we would have a consultant in geriatrics walking through a ward saying, “I want to see those three people in those beds dead by the morning because there’s a bed-blocking issue”, and so forth. I am sure that nobody in the House wants to see the Bill become a euthanasia Bill.
Can we have an explanation from the noble and learned Lord, Lord Falconer, about what happened to the Abortion Bill and why it morphed, without Parliament having any input whatever, into abortion on demand? I am concerned that it might happen with this Bill as well, under the commissioner whom we are talking about. What checks can Parliament have to ensure that the Bill does not go down the same road as the Abortion Act?
Earl Howe (Con)
My Lords, I shall speak very briefly to the amendment in this group in the name of my noble friend Lord Wolfson of Tredegar. His Amendment 913A seeks to probe an issue raised by a number of noble Lords in this debate: namely, the means by which the assisted dying commissioner may be held accountable. As the Bill is drafted, and as we have heard, the commissioner is appointed by the Prime Minister. In his amendment 124, my noble and learned friend Lord Garnier would have them appointed by the Crown on the advice of the Lord Chancellor. The point that the amendment addresses is that, whoever appoints the commissioner, there ought to be a clear accountability mechanism and a process whereby concerns about the conduct of the commissioner can be investigated in response to formal representations. My noble friend suggests that representations might be made to the Prime Minister, but I would be very interested to hear from the noble and learned Lord what thought he and his co-sponsor have given to the way in which the commissioner will be held to account.
The Parliamentary Under-Secretary of State, Ministry of Justice (Baroness Levitt) (Lab)
My Lords, given the size of this group and the need to keep my remarks within the speaking limit, I have taken a rather different approach to the structure of my speech, which I hope your Lordships will find helpful. Rather than going through the amendments thematically or in chronological order, I will structure my speech by first setting out some observations about the legal implications of some of the amendments. Then, I will outline what the Government see as operational workability issues presented by some amendments and, finally, I will turn briefly to drafting considerations. Essentially, I will be flagging issues by theme, but if your Lordships have any further questions relating to the workability of any amendments, I will be very happy to write to set out the Government’s views in more detail and place a copy in the House Library. I will not comment on all the amendments. If I say nothing about a particular amendment, it is because the Government have no concerns.
As my noble friend Lady Merron, the Health Minister, and I have set out many times, the Government’s position remains that it is for Parliament to consider the policy, so I will not be providing a government view on the merits of any proposed changes or make any observations in a personal capacity.
In other debates on the Bill, your Lordships have asked how the Government plan to implement it. I will set this out at the outset. The Government have not undertaken any detailed implementation work that would precede the parliamentary process. Should Parliament pass the Bill, the Government will then undertake detailed work to develop a delivery model, which would involve engaging with stakeholders and delivery partners, including the judiciary. To answer the point made by the noble Baroness, Lady O’Loan, this relates also to NHS England and providers, although your Lordships may wish to note that the Bill does not specify where the provision of assistance may or may not take place.
A number of your Lordships, including the noble Lords, Lord Harper and Lord McCrea, the noble Baroness, Lady Finlay, and the noble Earl, Lord Howe, asked about the role of the Prime Minister. I remind the Committee that this is a Private Member’s Bill, so the proposal to designate the Prime Minister as the person who is to appoint the voluntary assisted dying commissioner was made by the sponsor, not the Government. It has nothing to do with the Government. It is up to noble Lords whether they wish to retain that provision.
The noble Baroness, Lady Finlay, asked me to confirm whether the standards in the Cabinet Office governance code would be adhered to. If it is the will of Parliament that the Prime Minister is the person who is to appoint the commissioner, the standard recruitment arrangements for prime ministerial appointments will be followed. These are made through an open, regulated appointments process, which includes selection by an assessment panel containing an independent member. Whether or not the Select Committees are involved will be a matter for the sponsor. The reason I shook my head at the noble Lord, Lord Harper—I meant no discourtesy to him as I did so—was that I thought, and continue to think, that it is a shame that he did not pass by the opportunity to make a party-political point, when, for example, his noble friend, the noble Lord, Lord Deben, was assiduous in ensuring that he did not. I felt it did not help and was not constructive, but I did not mean it discourteously.
I turn to the first of the three groups in my speech, on legal considerations and, specifically, the compatibility of some proposed amendments with the European Convention on Human Rights. The articles in question are Article 14, on protection from discrimination, and Article 6, on the right to a fair trial. On Article 14, Amendment 913 in the name of the noble Baroness, Lady Finlay, would prevent the employment of a person as commissioner, or a member of their staff, should they have links with any agency promoting assisted deaths. The Government wish to highlight that the amendment as drafted is unbalanced, creating a risk of breach of Article 14 of the convention. This would be avoided if it also prevented the employment of individuals who campaigned against assisted dying. In addition, the amendment as drafted would prevent the employment of a person in the commissioner role, or a member of their staff, should they have links with any agency that provides assisted deaths. But, if assisted dying were to be provided through the NHS, that would prevent the commissioner employing staff with relevant NHS experience.
Amendment 496C in the name of the noble Lord, Lord Weir, would involve differential treatment as between how reconsiderations of panel decisions would be made in the cases of, on the one hand, identified groups of people in the amendment and, on the other, those not belonging to those groups. If that is the intention behind the amendment, consideration would need to be given to whether the approach is proportionate and justified to avoid a risk of breach of Article 14. But if the intention behind the amendment is to afford everyone a right to hearings with the commissioner, but for only remote hearings to be permissible in the circumstances specified, then drafting changes would be needed.
Lord Falconer of Thoroton (Lab)
My Lords, first, I pay tribute to the noble Baroness, Lady Maclean, who referred to her own personal circumstances. Every one of us who have heard individual personal circumstances realises this is difficult to do, so I pay tribute to that and appreciate what she has done.
Secondly, I ask the Committee’s indulgence for 30 seconds to mention Mr Nathaniel Dye, who has been a campaigner for assisted dying and has been enormously helpful to me. He travelled through the whole process of this going through the Commons and the Lords. Tragically and suddenly, he died at the end of last month and today is his funeral. I know that his family, and everybody who knows him, would appreciate it if his involvement was recognised.
Lord Falconer of Thoroton (Lab)
Thirdly, I join with everybody in the Committee in deprecating vicious attacks on the noble Lord, Lord Sandhurst, and the noble Baroness, Lady Finlay. Any one of us who have been involved in this get vicious attacks outside. I agree with the noble Baroness, Lady Fox, when she says there is a slightly testy atmosphere from time to time in here. The best that we can do to try and fight off those attacks is to be as good-natured, funny and warm as we normally are. I am looking forward to the noble Lord, Lord Deben, being warm and funny again.
Fourthly, my Amendment 131A, which the noble Lord, Lord Harper, mentioned, would add that the Prime Minister is to consult the Welsh Ministers before making the appointment. I hope that nobody objects to that; it is what the Welsh Senedd effectively agreed by passing the LCM. When we come to that amendment, I will move it, as I detect no objections.
Finally, I am afraid I will not provide the noble Lord, Lord Moore of Etchingham, with any assistance in relation to the way he conducts himself in the Committee. He always conducts himself, if I may say so, with impeccable manners and courtesy. It is for each one of us to determine what is appropriate and what is not.
I will deal with the amendments quite quickly. They are all to deal with the voluntary assisted dying commissioner provided for in Clause 4. The voluntary assisted dying commissioner will be appointed by the Prime Minister. As my noble friend Lady Levitt, the Minister, has indicated, as long as that stays in, then it will be subject to an open appointment procedure involving an assessment panel.
The idea of the noble Lord, Lord Beith, is perfectly commendable: should a Select Committee look at the appointment? The way that would work in practice is that it would be for the Cabinet Office and the individual Select Committee to agree whether the appointment should be subject to a Select Committee procedure. I would be in favour of it. I do not think it is appropriate to put it into the Bill, but I can see real merit in it. Iwould not only have no objection to it, but I think it is a good idea.
Lord Harper (Con)
Given that the noble and learned Lord thinks it is a good idea and that part of the reason—I think the noble Lord, Lord Deben, touched on this—many of us have concerns is that so much of the detail of implementing this is not set out but left for decisions, what is his objection and rationale for not coming forward with an amendment and putting in the Bill so that it has to be done by a pre-appointment hearing rather than leaving it to a decision?
Lord Falconer of Thoroton (Lab)
With respect to the Select Committees in the other place, they should be consulted and decide whether they want it.
In the amendment from the noble Baroness, Lady Cass, she draws attention to the fact that the assisted dying commissioner has a function under the Bill. That function is to receive documents, make appointments to the assisted dying panels, make arrangements in relation to such panels—this means that he or she is responsible for making sure the process runs properly—and determining the applications for reconsideration of panel decisions. That means that, if a panel says no to an applicant who wants an assisted death, the voluntary assisted dying commissioner has the power under Clause 18 to say that another panel should look at it. He or she has that power in a semi-judicial function if there is an error of law in relation to it, so that is a function.
The commissioner also has a function to monitor the operation of this Act. If noble Lords go to Clause 49, they will see that he or she is given the power to make reports, give an annual report and identify things that may be of significance in relation to it. One should not confuse this role with monitoring, for example, the performance of doctors in relation to their role. I do not see the very specific functions and the obligation to monitor and give reports, as in any way in real conflict. I think they could be done by the same person, particularly if there is a deputy to be appointed as well. I note what the noble Baroness said, but I do not think it is necessary to make provision in the Bill for a separate role for somebody to do both. I have thought very carefully about it.
The noble and learned Lord, Lord Garnier, has been kind enough to indicate that he has had to leave, but I will deal with his point. He wants not the Prime Minister but the Lord Chancellor to make the appointment. The Prime Minister and the Lord Chancellor are both political appointments. We have chosen the Prime Minister because—even though I think there is practically nobody more important than the Lord Chancellor—the political world, for reasons I am completely unable to understand, regards the Prime Minister as more important. We have chosen the most important person in the Government to make the decision and, with the greatest respect to the noble and learned Lord, I do not think we should change that.
The noble Lord, Lord Weir, asked why we should have a judge. I am a great admirer of judges, and I declare an interest in that I am married to a judge. The reason why we have a judge is twofold. First, ex-members of the Supreme Court, the Court of Appeal or the High Court of England and Wales—it is England and Wales that we have in mind—have high standing. They are regarded as people of calibre, which is why they are put in. Secondly, one of the specific functions in the Bill is to consider whether the rejection by a panel is an error of law. That seems to us to be appropriate to be dealt with by somebody with high legal experience. Separately, the commissioner is somebody who has to issue rules and a process for dealing with it. That is the reason for doing that.
Lord Deben (Con)
If that is the argument the noble and learned Lord puts forward, with which I entirely agree, does it not lead him to understand that the proposal of the noble Lord who spoke unwillingly earlier, to put this back where it was in the first place—basically, under the control of judges—would be a very good thing to do? Why has he not accepted that most of us would be able to support that, and therefore we would cut down the time we are spending on dealing with the situation when it is not there? If it is necessary, as he says, why not do the whole hog?
Lord Falconer of Thoroton (Lab)
We have changed from a judge to a panel because, after considerable debate in the Commons, it was thought that having a legal person in the middle, a psychiatrist and a social worker gave greater reach and understanding of those issues. We debated that issue in full over a particularly long period of time on an earlier Friday. I am more than delighted to redebate it—however, I think that issue has been laid to rest. That does not mean one does not have to have a process whereby the doctors pass their findings to a panel, and that is the role, in part, of the assisted dying commissioner.
Lord Harries of Pentregarth (CB)
The noble and learned Lord talks about putting it to rest, but for many of us that issue is not at rest. I certainly supported the noble Lord’s Amendment 120, and I got the impression he was still thinking about its possible value—so, as far as many of us are concerned, it has not been put to rest.
Lord Falconer of Thoroton (Lab)
I was pretty clear in my remarks that I favoured the panel process. When I say that it has been laid to rest, I accept that the House may take a different view from me, which I would completely respect. To deal with that, obviously there would be a vote on Report when we would decide whether we wanted the panel or the court process. I hope the issue has been laid to rest, but if it has not and I lose, so be it. I earnestly hope that we get there and reach a decision in relation to it.
The noble Lord, Lord Moylan, would like to replace the word “principal” with the word “sole”. I make two points in relation to that. First, all the assisted dying commissioner can do is that which is prescribed in the Bill, because he or she is a creature of statute. Therefore, there is nothing more that he or she can do beyond that.
The word “principal” is used, not “sole”, because we do not want to get into a completely barren argument subsequently about whether something that the commissioner does as collateral to the principal functions is covered. That is why “principal” is used and why I would not be in favour of changing the wording of the Bill in relation to that.
Lord Moylan (Con)
That point seems to me to be covered by the general power of the assisted dying commissioner under Schedule 1 to do anything that is appropriate or necessary for carrying out his functions, so I do not think that is a reason for not using the word “sole” and giving some assurance to those of us who are concerned about creep.
Lord Falconer of Thoroton (Lab)
I think we will have to disagree on that. It is the normal way for that to be dealt with in drafting, so I am content with it. I am sorry to disagree with the noble Lord, but that is my view.
Amendments 135 and 436 from the noble Lord, Lord Frost, would place a duty on the assisted dying commissioner to check that all the paperwork is in order. Again, I have thought very carefully about that. The role of the commissioner, as far as the panel is concerned, is to pass the two reports on to the panel once he has received them from the doctor, for the panel then to consider whether that case is in order and meets the criteria—is the panel satisfied that there is no coercion and is it satisfied on capacity? I think it is neither appropriate nor necessary to add yet a further safeguard in that respect, because that is why the panel is there. It would lead to overlap and unnecessary delay without, in practice, any additional safeguard. The noble Lord, Lord Evans of Rainow, supported that. For the same reasons, I would reject his amendment.
The noble Baroness, Lady Finlay, made a point about conflicts of interest. There would obviously be a conflict of interest if the assisted dying commissioner had a financial or commercial interest in any sort of provider of assisted dying services. That would be covered by the principles to which the noble Baroness, Lady Levitt, referred in relation to the way in which the appointment would go. I completely agree with the point by the noble Baroness, Lady Finlay, but I do not think there is a need to put anything into the Bill in relation to it.
A number of noble Lords have referred to the risk of mission creep—the idea that an enthusiast or proponent of assisted dying would operate in an inappropriately biased way. All that the assisted dying commissioner can do is act in accordance with the terms of the Bill. As the noble Lord, Lord Carlile, said, if for example the commissioner stuffed a panel with people he knew would take a biased view, he would be acting both improperly and illegally under the terms of the Bill. As the noble Lord said—and I agree with this—Schedule 1 opens the door to every sort of judicial review if that were the position and people became concerned about it. That goes to the amendment from the noble Lord, Lord Wolfson, which would provide for complaints to be made to the Prime Minister. Of course you could make complaints to the Prime Minister, but you certainly would not need the Bill to make that possible; there would be political accountability for the conduct of the commissioner, because the Prime Minister has made the appointment. Equally, there would be legal accountability in the form to which the noble Lord, Lord Carlile, referred.
Lord Hamilton of Epsom (Con)
Given the noble and learned Lord’s encyclopaedic knowledge of the statute book, can he tell us what went wrong with the Abortion Bill, which morphed without parliamentary consent, much to the concern of its sponsor, Lord Steel.
Lord Falconer of Thoroton (Lab)
Would the noble Lord mind if I did not, as I think what one has to do is focus on this particular Bill?
Baroness O'Loan (CB)
It is all very well talking about access to judicial review when things go wrong, but the reality for the ordinary man in the street is that judicial review is largely out of the realm of possibility: it just costs too much. Therefore, we need to make sure that things are so laid down in the Bill that there do not have to be multiple requests for judicial review. For that reason, I ask the noble and learned Lord to consider this further.
Lord Falconer of Thoroton (Lab)
I could not agree more with the noble Baroness, Lady O’Loan. That is why, in addressing these issues, we have been very specific about what the voluntary assisted dying commissioner can do in both Clause 4 and the schedule. What is more, that is why we have such a limited panel that can be made for the voluntary assisted dying commissioner. It has to work, and that is why it has been drafted in this way. The noble Baroness is absolutely right that judicial review is an expensive process, and it provides a guardrail, but ultimately there must be sufficient detail in the Bill to give the public confidence that the system will work. That is why we have, for example, restricted it to a Supreme Court judge, a Court of Appeal judge or a High Court judge. We are absolutely on the same page on that.
I turn to the noble Lord, Lord Sandhurst. My understanding of his Amendment 430—although I may not be correct—is that, where the two doctors agree, the assisted dying commissioner, if he or she agrees, can then short-circuit the need to go to the panel. That is my understanding of the amendment, which is interesting. However, my anxiety is that we would then, in every single case, almost, be getting rid of the panel. The position would be that you only ever get to the panel if both doctors have agreed. The sponsors presented the Bill to this House on the basis that, in every case, the safeguard is—to shorten it—two doctors and a panel. So I respect the thinking, because it is trying to streamline the process, but I do not think that it is appropriate, and it would undermine the safeguards.
Lord Sandhurst (Con)
The noble and learned Lord is right. When I introduced the amendment, I did say that there might be problems with it, but I thought it was something that should be looked at.
Baroness Berridge (Con)
I am grateful to the noble and learned Lord for his realistic acceptance of the difficulty of judicial review as a remedy for many people. I would be grateful if he could also reflect on the situation with family members: if the panel approves assisted dying, their remedy to challenge that is judicial review. We heard evidence in the Select Committee, particularly from Sir Nick Mostyn, that that is just fine. Many of us, particularly myself, do not feel that it is satisfactory for family members to have to resort to judicial review if they have evidence, for instance, that there has been coercion. Will the noble and learned Lord reflect on that, which may avoid further amendments later down the line?
Lord Falconer of Thoroton (Lab)
I will certainly reflect on that, and may I express my gratitude to the noble Baroness, Lady Berridge, for facilitating the meeting with Professor Ruck Keene? It was incredibly helpful, and I genuinely appreciate it. Yes, I will reflect on what the noble Baroness said. I suspect there will be a similar answer to the one I gave to the noble Baroness, Lady O’Loan: we have to be as specific as we possibly can in the Bill, because judicial review is difficult for normal people, particularly in those circumstances. That is why, whether it is a court system or any other system, we must try to make this as clear as possible in the Bill.
Amendment 146, in the name of the noble Baroness, Lady O’Loan, says that the assisted dying commissioner should be able to investigate patterns. In particular, she cites what may happen in relation to care homes. I agree that the assisted dying commissioner should have that ability. He does have that ability under Clause 49(1)(a), (b) and (c); so, for example, if he is concerned about a pattern developing in care homes, he already has the power to monitor that.
The noble Lord, Lord Morrow, asked whether there should be a further Equality Act assessment. I dealt with that last time and said I had looked carefully at what the former commissioner had said and I did not think that a further impact assessment was appropriate, because, if you constantly make particular points that are covered in general, you are never going to get to an end of it. I do not think that the points the commissioner raised were ones that had not already been considered in the impact assessment.
Baroness O’Loan (CB)
I accept that there is a general power in Clause 49 to look at what is happening in relation to the regime, but I say again that there is an issue raised by Amendment 146 which definitely requires further consideration. I ask the noble and learned Lord to reflect again not just on the monitoring of delivery of the service, but on the arrangements for the delivery of the assisted dying process in care homes, where people are vulnerable, isolated and largely unsupported in many cases. There is a very serious problem, given the remarks of Age UK, care homes, et cetera.
Lord Falconer of Thoroton (Lab)
I will certainly reflect on it, but the issue of somebody who is isolated and alone in a care home is why there are five steps before you get to assisted dying, and the question is whether the sequence of doctor number 1, doctor number 2, doctor number 1 again, the panel, doctor number 1 again is a sufficient safeguard. My own view is that it is a sufficient safeguard and it is particularly focused on protecting the vulnerable.
Lord Falconer of Thoroton (Lab)
I should get on. I apologise, but the noble Baroness has had a very fair crack at that particular whip.
I come to the question of the noble Baroness, Lady Maclean, which is: should there be a register of the interests of the assisted dying commissioner? I understand what motivates that. I do not think that that is necessary because, as my noble friend Lady Levitt said, that is something that would be dealt with by the normal process governing conflicts of interest. There would not necessarily be a record of it, but it would be something that would have to be disclosed before a decision was made.
The noble Baroness, Lady Grey-Thompson, raised various issues in relation to the appointments process, but I hope that I have dealt with them by referring to the process that would apply. I think I have dealt with all the other points, including the point from the noble Earl, Lord Howe, about Amendment 913A.
Lord Harries of Pentregarth (CB)
I am still genuinely not quite clear who the noble and learned Lord thinks the commissioner, and indeed this whole process, is ultimately accountable to. With the rejection of the amendment from the noble Baroness, Lady Cass, and various others, I am trying to work out who ultimately is going to monitor this if there is public concern about the law being interpreted much too loosely, or things are going wrong. Who is going to keep a permanent eye on what is happening?
Lord Falconer of Thoroton (Lab)
The nature of the appointment is that it is an appointment by the Prime Minister. He is politically accountable for the appointment. The assisted dying commissioner, like so many other appointments made by a Minister, has legal duties, but, if you are looking for political accountability, it is the person who is responsible for his or her appointment. That is the way that public appointments operate.
Baroness Freeman of Steventon (CB)
I am sorry, but the noble and learned Lord has not addressed Amendment 144A.
Lord Falconer of Thoroton (Lab)
I apologise. The noble Baroness, Lady Freeman, emphasised in her Amendment 144A the importance of providing impersonalised information and assistance in relation to reaching a structured decision. She speaks from considerable experience, and I express my gratitude to her for talking to me about it and providing me with real assistance.
That would have to be dealt with by codes of practice issued by the Secretary of State under Clause 39. If there were problems—for example, the codes of practice were thought not to be adequate or were giving rise to problems—it would be for the assisted dying commissioner, under Clause 49(1), to report or indicate that something was wrong. The points the noble Baroness makes are important and I apologise for not dealing with them.
Baroness Coffey (Con)
The noble and learned Lord did not speak at all to his Amendment 480 in this group. Is he planning to address it later in group 3? I am conscious that he did not particularly address my amendments, but I assume it is because he disagrees with them, which I understand. However, Amendment 480 has not been talked about at all. It is okay if he wants to address it in group 3.
Lord Falconer of Thoroton (Lab)
I apologise. I will talk about it in group 3.
Baroness Cass (CB)
Long speeches are unpopular at the best of times, but particularly as I now stand between noble Lords and lunch, so I will try not to make one. It has been a very useful group. We have had a lot of discussion about the appointment process, transparency, conflict of interest and how we ensure public confidence in the commissioner. I think we have reached a conclusion on that—one which may not satisfy everybody, but we have come to a place on it.
Beyond that, a lot of the concern has been about things that fall through the cracks, such as my noble friend Lady Freeman’s concerns about patient information, data, risks and patterns in care homes, and family involvement, which is important. My reflection is that I accept the noble and learned Lord’s view that we do not need to separate a delivery and a monitoring role, but it still seems as if the assisted dying commissioner, even acting with the greatest integrity, needs eyes in the back of his or her head to pick up on issues such as local fluctuations or other aspects of concern. I look forward to hearing about other ways in which things are going to be monitored carefully, whether by the CQC or NHS England, as the noble and learned Lord suggested, so that we can be reassured on those matters. With that, I beg leave to withdraw Amendment 122.
Lord Falconer of Thoroton
“(3A) Before making an appointment under this section, the Prime Minister must consult the Welsh Ministers.”Member's explanatory statement
This amendment requires the Welsh Ministers to be consulted, before appointing a person as the Commissioner.
Lord Moylan
“(f) setting charges payable for the service by those seeking assistance.”Member's explanatory statement
This amendment would provide a means whereby assistance would not be a charge on the public purse.
Lord Moylan (Con)
My Lords, it is a pleasure to be addressing your Lordships’ Committee immediately after the lunch break.
I have a number of amendments in this group which work together to do two things. The majority of them would prevent any public money being spent on the assisted dying service. One of them, Amendment 917, seeks to create an alternative funding structure. I will say immediately that my alternative funding structure is robust and effective, but I am not saying that there are not others that could be put forward that would have a similar effect. The main point is to say that there needs to be a justification given—and so far, none has been given—as to why this service, when it is created, should be a charge on the taxpayer.
The noble and learned Lord has made much in his comments about the Bill so far of the principle of autonomy—the right to dispose of what happens with your own body, I suppose. The principle of autonomy in this respect has been in place in law since 1961, when suicide was decriminalised. In my view, the Bill goes a great deal further than establishing autonomy. What it is, in fact, is coercive on the rest of us, and one of the ways it is coercive is by envisaging we are all going to pay for it.
The Bill does not say explicitly that the service is going to be paid for by the taxpayer, nor does it say explicitly that it is going to be free. But it is certainly the case that the Bill envisages public expenditure, because the Secretary of State is going to have to pay for the maintenance of the voluntary assisted dying commissioner and its staff and activities. It is implicit and assumed—if I am wrong about this, the noble and learned Lord can certainly tell me—that the provision of the service at the individual level is going to be free, so to speak, at the point of use, by the person applying for what is called assistance.
Why should this be a charge on the taxpayer? It is not, after all, a medical treatment—that is absolutely clear. We provide free medical treatments through the NHS, and the principle of free medical treatment at the point of use has been established for many years in this country. But this is not a medical treatment, so why should it be provided free? Giving someone permission legally to do something which has previously been prohibited—in this case, giving them permission to assist a suicide, which at the moment is legally prohibited—does not imply that the Government have to pay for the person to do what they are now permitted for the first time to do. So that argument does not follow in any sense at all.
It might be said that voluntary assisted dying is an act of compassion. However, it is not the case that the state pays for every act of compassion. There are many organisations that do—mainly charities—and individuals provide and express their compassion through donations and other acts of compassion. The Government are not the only source for that. Anyway, the truth is that many of us do not consider the Bill, or assisted suicide, to be an act of compassion—in fact, we consider it to be an act of cruelty.
My amendments would prohibit the expenditure of any public funds on any activity envisaged in the Bill, with the exception of activities related to Clauses 34, 35 and 36, which will create criminal offences. Of course we would expect the Government to pay for the investigation and prosecution of criminal offences, as that is a state function, but it would be prohibited for the other functions envisaged in the Bill.
In my Amendment 917, I have attempted to show at least that an alternative is possible. The alternative would involve the assisted dying commissioner establishing a budget at the beginning of the year. The budget might not be exactly what he ends up spending. Anyone who has been involved in a local council will know that you are legally obliged to set a balanced budget at the end of the year, but it does not guarantee that at the end of the year it turns out to be a balanced outcome. However, he would be obliged to set a budget and, on the basis of that budget and on the basis of the assessment of demand—which in the first year would be difficult but in later years should be fairly predictable, I imagine—to set a fee. That fee would be payable by those applying for assistance. Provision is made for the applicant to pay the fee in stages, so that the applicant might be charged so much at the preliminary discussion stage, so much later on and so much after that.
People already pay for assisted dying. I do not know what it will cost, but I do not see that it would be any more expensive, necessarily, than going to Dignitas—and people pay to go to Dignitas. Why should we assume the expenditure they make at the moment and put it as a charge on the taxpayer? I could be rebutted if people were to say that this is an argument about nothing and that, in fact, the Treasury will save so much money from assisted dying because we will not have all these sick and elderly people whom we have to pay to look after and that we are going to be quids in. If any noble Lord wishes to make that argument, I invite them to do so.
This is not in itself an argument about whether the service should be provided by the NHS; I know it sounds as though it might be, but it is not. I have later amendments about whether the service should be provided by the NHS. This is a question about whether it should be free. The NHS can provide services and charge for them—it already does. Many hospitals, in London at least, have private wings, where the NHS provides services for which it charges. I am making the conceptual point that this is a distinct question: should it be free or should people pay for it? Should there be a charge on the taxpayer? The case that it should be free, with a charge on the taxpayer, has not been made by the proponents of the Bill. If they wish to make it—it is a little ambivalent in the Bill—now is their opportunity to do so. I beg to move.
Baroness Fraser of Craigmaddie (Con)
My Lords, I thank my noble friend for opening this after-lunch debate and outlining that an alternative is possible. I will speak to my Amendments 835 and 868, which I added to this group because they seek to ensure that an assisted dying service is clearly separated from NHS provision, and that therefore there is clear transparency around funding for the taxpayer. Such a service could be set up and funded privately or charitably, in the same way that we currently provide and fund care provision or hospice services. Such a service would be clearly separate from the NHS but could operate, potentially, in partnership. The NHS could commission services if it so chose. It would have to share data and patient records and there would need to be a system for the regulation of such services.
Proposed new subsection (3) in Amendment 835 would require regulations on the definition of “privately funded organisations”. If such a service were to work in partnership with the NHS—as many hospices and third-sector service delivery organisations currently do—then further proposed new paragraphs would require the establishment of the means through which NHS providers can commission privately funded organisations to provide services, the data sharing arrangements to ensure the necessary sharing of records, and, most importantly, a system for regulating the provision of services by privately funded organisations.
Some noble Lords have expressed concern about the use of “private organisations” in my amendment. However, I point to the kaleidoscope of entities that currently provide health and social care already—some of which my noble friend Lord Moylan just mentioned. Many people have made a profit from care homes, many charities provide health services instead of the NHS, and private hospital care coexists with NHS provision, often with the same consultant working in both. I am a Conservative, so I do not think that making a profit per se is a bad thing; I accept, however, that making excessive profit out of death and dying is not particularly morally acceptable, hence the need for robust and transparent regulation of any services.
As I have said before in Committee, this is an area where the supporters of the Bill and those who support the principle of legalising assisted dying have missed a trick. I agree with my noble friend Lord Moylan in posing the question of why assisted dying should be taxpayer funded. It is essential to ask the sponsors of the Bill at this stage how the establishment of an assisted dying model would impact our current healthcare systems and healthcare professionals.
We know that the Secretary of State for Health has stated that there is currently no budget for such a service, and Stephen Kinnock, the Minister of State for Health and Social Care, who voted for the Bill, has said that the Government will have to reprioritise spending to fund assisted dying. Therefore, it appears that funds will have to come out of the health department’s existing budget. Stephen Kinnock also stated that, as it stands, the Bill includes the potential for the provision of assisted dying services privately, as well as free on the NHS. Therefore, in this group of amendments, we are asking the sponsors to ascertain what they intend. We are also asking how the Government feel about the requirement to reprioritise NHS budgets. What services would then be deprioritised?
The Bill currently going through the Scottish Parliament makes it explicit that assisted dying would, if that Bill is passed in Scotland, be delivered by the NHS. However, this Bill is silent. The Scottish Bill is accompanied by a financial memorandum which outlines the cost to a range of public bodies of the implementation of providing assisted dying—the majority of which will fall on the NHS and cover things such as the cost of anticipated clinician hours, staff training, the costs of the substance provided to end life, both the storage and monitoring of it, data collection, support and navigation services, and many others. All are extra costs the NHS will be expected to bear.
Do the supporters of the Bill, as my noble friend Lord Moylan referred to, expect the service to be cost neutral, as referred to in the financial memorandum in Scotland? The Scottish Bill identifies “unutilised healthcare” savings due to the obvious but rather unsettling statement that every person who has an assisted death will not require further care.
I accept that saving health and care costs is not the motivation of the sponsors of this Bill. However, there are many concerns expressed by individuals and organisations that implementing the Bill will have real cost implications and necessitate clinicians diverting time and resources from their already stretched patients to support assisted dying. We need to find a balance between what the Bill sets out to provide and what is best for our current health and care services. Creating a service that is separate from the NHS, as many hospices and care homes already are, would ensure such a solution.
The NHS is not a solution to all issues. I come to this from my experience in the third sector, where the medicalised approach to care and service provision, as would be delivered by the NHS, often does not lead to optimal outcomes for the patient—whereas a demedicalised social model can often be preferable. Hospices provide holistic care, not just medical care, and include support for emotional, social, practical, psychological and spiritual needs, as well as support for the person’s family and carers. Hospice teams may include doctors, nurses and healthcare assistants, but also social workers, therapists, counsellors, chaplains and trained volunteers. Is this not what the Bill’s sponsors want for terminally ill adults?
Lord Sandhurst (Con)
My Lords, I shall try not to repeat what my noble friends Lord Moylan and Lady Fraser said. My amendment asks the Secretary of State to make regulations providing for
“the circumstances in which a fee is payable in relation to any of the steps set out at sections 15 to 18”.
I remind noble Lords that those are: replacing the co-ordinating or independent doctor, references to the panel, determination by the panel and reconsideration by the commissioner.
My reading is that it is not clear what is to happen. The Commons sponsor has said that the service should be free at the point of use as regards the NHS. That is laid down by Clause 41(5), but it is not clear whether that refers to the panel’s activities and ancillary services relating to that. It is possible that, given the strain on public services caused by the Bill, fees will be needed to off-set some of the costs. We need to be clear about this. The way forward is for the Secretary of State to make regulations explaining what is to be charged for, when and on what basis.
Baroness Finlay of Llandaff (CB)
My Lords, I added my name in support of Amendment 827, although I also support the amendments that make it clear that the delivery of the service must not be provided by the NHS, an NHS trust or any body or any agency holding itself out to be part of the NHS, as in Amendment 835 from the noble Baroness, Lady Fraser of Craigmaddie.
The amendment to which I added my name would allow a collaborative funding model for the service to be developed, based on a means-tested formula, for those who are able to pay adequately and would otherwise have paid the fees charged by Dignitas in Switzerland, whose accounts are not open for examination. The collaborative funding model could be based in part on the principles behind co-operatives. The accounts of a collaborative scheme would need to be completely open to public scrutiny. Co-operative funding models leverage shared ownership, democratic control and member investment to finance enterprises, prioritising community benefit over profit maximisation. The shared ownership would relate to those who use the service, with levels set depending on the aspects that they access, because some might access information only and others might access the whole process.
There are five interconnected component parts to a co-operative model. First, the policy and regulatory framework defined by government would give proportionate oversight and regulation. Secondly, it would ensure adequate training across the whole system. Thirdly, the clearly defined market environment would be restricted to the provision of an assisted death service. Fourthly, the culture of the co-operative collaborative would be shaped by those wishing to avail themselves of an assisted death without jeopardising their ability to access clinical care and without jeopardising the clinical care of others through the diversion of NHS funds. This could involve crowdfunding and allow specific donations in memoriam and so on.
The fifth component relates to networks of knowledge exchange to inform the criteria used in the financial assessment, based on needs. The Bill is based on the principle of choice, and that principle could run to the funding as well. People may choose to have a slightly less extravagant funeral and pay into a collaborative system, allowing others who would not be able to afford a fancy funeral to still access the service even if they could not pay for the components of the service. After all, we have people who pay high rates of tax, such as council tax, to fund our public services, equally benefiting those who are in a much lower financial bracket.
Overall, these amendments are important because they would ensure that NHS funding is not eroded. We hear consistently about NHS deficits in all parts of the system. The palliative care and hospice sector is withering under extreme financial pressures since it has no secure rolling contracts for the services it delivers. Pressures on commissioners are already resulting in difficult decisions. There is no spare money to pay for an assisted death service.
The noble and learned Lord, Lord Falconer, has tabled amendments that would require ICBs to commission this service, but the Minister has admitted that the funding will come from reprioritisation of existing budgets. How will the ICB balance its legal obligation to meet the palliative care needs of its population with the provision of an assisted death service? The noble and learned Lord’s Amendment 749B would mandate the provision of assisted deaths by ICBs, meaning that they will be fully funded by the NHS—in contrast to hospices, which are heavily reliant on donations for a major portion of their funding.
I hate to suggest it, but sometimes this looks like a way to save money. Each assisted death has been estimated to cost around £2,000 yet would save about £13,000, four months of healthcare costs, giving a net saving of £11,000 overall. The money has to be found from somewhere. At the moment, there is a serious risk of clinical services being eroded to fund the multiple payments that will need to be made to the different professionals involved; that will become particularly important when we looked at funding it in a devolved model.
Lord Markham (Con)
I am a bit confused. I think I heard from the noble Baroness a concern that savings of £13,000 a week would be generated if assisted dying happened. I then heard her say afterwards that there would be costs on other people. Obviously, she cannot have it each way. A few times I have heard people asking, “Where’s the money coming from?”, and other people saying, “There’s an incentive because there’s a saving in it”. Can the noble Baroness clarify that, please?
Baroness Finlay of Llandaff (CB)
I thank the noble Lord for asking for the clarification. I did not say a week; I said four months. Actually, with the severe deficit that we—
Lord Markham (Con)
I believe the noble Baroness’s general point was that there is a danger because savings would be made from an assisted death. On the other hand, she asks where the costs are going to come from. I am just wondering which she believes: that there will be savings or that there will be additional costs.
Baroness Finlay of Llandaff (CB)
My concern is that if you take money out of a healthcare budget that is already in deficit, you will end up with an incentive for people to go down the road of saving money by working towards promoting assisted deaths for patients for whom additional care would mean them no longer feeling in despair in any way and having their quality of life returned to them. The NHS budget appears to be in such a difficult and parlous state that we have to be very careful that we do not spend NHS money on what is not a healthcare treatment.
Baroness Fox of Buckley (Non-Afl)
My Lords, the amendments in the names of the noble Lord, Lord Moylan, and the noble Baroness, Lady Fraser of Craigmaddie, are very useful in making us think about what an assisted dying service would or should look like if the Bill is enacted and what the implications are for funding it—public funding or who is going to pay.
We will come to a more detailed discussion on this in later groups, but I will just raise a few things. As I understand it, and I probably need some clarification from the noble and learned Lord, Lord Falconer, the idea is that integrated care boards will be mandated to provide a fully funded assisted dying service. I would just like to get a sense of what is envisaged. If that is what is envisaged, we have to ask the question: is that reasonable?
As others have said, contrast that with hospices, which receive only a portion of their funding from ICBs and are heavily reliant on donations. I am sure we have all been to those coffee mornings and bought cakes, sold cakes and all the rest of it, trying to raise money for hospices. Meanwhile, palliative care services rely heavily on charity funding, recovering only 30% of their funds from the Government. I understand and note the important caveat from the noble Baroness, Lady Fraser. I am not trying to say that the state should run everything at all times and that anyone who is doing anything in the charitable sector is a problem, but underfunding end-of-life care at the same time as fully funding ending-your-life non-care is a bit peculiar.
The danger is that if the sponsor’s aspirations come to fruition—if I have got them right—funding for assisted dying will start competing with and risks diverting resources away from palliative and end-of-life care, and both will compete for a share of a limited health budget. I note that professional bodies, such as the Royal College of GPs and the Association for Palliative Medicine, argue that the assisted dying service must have distinct funding to avoid such competition.
It was very important that the Health Secretary, Wes Streeting, was frank with us when he noted that
“setting up this service will also take time and money that is in short supply … Politics is about prioritising. It is a daily series of choices and trade-offs”.
I would like to address a couple of questions to the Minister, who I know is confined to discussing workability, to ask how this prioritisation will work. Have the Government considered this? If funding will come from reprioritisation of existing budgets, are we not at this point being asked to legislate a direct conflict of interest, where integrated care boards will have to choose between, for example, funding palliative care and funding assisted dying? If it is not palliative care—I have overused that—which other services will be deprioritised in these choices in order to fund this? It is a limited budget. We keep being told that there is a scarcity of funds, so I want to understand that.
Finally, another reason to raise this—it is not directly to do with funding, but it counts—is that if assisted dying is to be paid for by the public purse and/or associated with the NHS, it could mean that assisted dying is treated as a standard healthcare solution. That surely could have a corrosive impact on trust between patients and clinicians, breaking their “first do no harm” contract with the public and flouting the Hippocratic oath.
Should doctors be expected to incorporate ending life into their routine roles if it is publicly paid for, when the major professional bodies explicitly warn against this? The BMA says that
“our view is that assisted dying should not be part of the standard role of doctors or integrated into existing care pathways—it is not something that a doctor can just add to their usual role.”
That more existential kind of question, or about medical ethics, will obviously be compromised when, if public funding and the taxpayer are paying for assisted death, those taxpayer-funded NHS doctors are surely going to be asked to do something that goes against their ethical code.
Baroness Grey-Thompson (CB)
My Lords, the noble Lord, Lord Moylan, and the noble Baroness, Lady Fraser, raised some interesting points in this group of amendments. I do not have the noble Lord’s experience of local councils—I declare that I am president of the LGA, but that is largely an honorary role—but I have a lot of experience of wheelchair services. I also declare that I am president of the Wheelchair Alliance.
A service that should be incredibly easy to provide has become one of the most complex parts of NHS funding. In the good old days, when I was a child, there were two choices of chair: a small one and a large one. These days, because we want to provide better wheelchairs for people, which is a good thing, the commissioning and provision of those services has become complicated, and in different areas different prices are paid for exactly the same chair. My concern is that, if we cannot do that for something as simple as wheelchair services, how are we going to do it for this process? Many wheelchairs should be provided within 18 weeks, but I know cases where it has taken years to provide a chair for a child. We should learn from previous experience.
Some noble Lords have mentioned the potential competition that could come from funding for this service and the challenges for palliative care. However, the consensus among several professional bodies, including the Royal College of General Practitioners and the Association for Palliative Medicine, is that assisted dying should have distinct funding. Others have mentioned the way that palliative care is currently funded in the UK, but Nancy Preston, who gave oral evidence as well as written evidence co-written with a professor at Lancaster, Suzanne Ost, expressed concern that it would communicate the wrong symbolic message.
I am one of the seven Peers who were in the Observer for my number of amendments. I am receiving lots of emails telling me I need to uphold the will of the people, but I am not sure the people have been asked how they would like to reprioritise the funding of the NHS. I accept that lot of people think the service is needed, but are they being given the choice of what else they might lose? The comments by Stephen Kinnock, who said there needs to be reprioritisation, were interesting. We need to be really clear what we are going to lose out on. The noble Lord, Lord Markham, made some interesting points about savings and cost, but for me that is more about how you schedule the payments and work through it.
I am more concerned about the comments made by the noble Baroness, Lady Finlay, about the incentive to encourage people to go down this route. In Belgium, the service is paid for through the national health and the doctors receive a fee of €180. The cost of the procedure in Canada is $2,327, and it is estimated that they spend about $22.3 million a year to put this service in place. They save $149 million, but for provincial healthcare that is a negligible saving—it is 0.08% of their budget.
Stephen Kinnock talked about doctors receiving a reasonable expense. I have raised the issue of “reasonable” in terms of the Equality Act before. What actually is it reasonable for a doctor to be paid? In Australia, 27% of the doctors were unpaid while 32% got direct state government reimbursement, but a conversation is going on there at the moment about whether clinicians should have to be altruistic to provide this service. Doctors are already talking about having a standardised price for a voluntary assisted dying assessment of $860 as an out-of-pocket expense. That is important because a lot of assumptions are being made about where this service is going to be provided. The reality is that if we are going to give people a choice, we need to give them a real choice.
This is probably going to come up in later groups as well, but I have also noticed a shift in the language, which originally talked about doctors and now we are talking about medical practitioners. Does this mean it could be physician assistants? Could it be nurses? Could someone else be trained to do this? Could there be a career path in this service? Might people think this a good step in their career? The reality is that somebody always pays: the question is just who and when.
Lord Empey (UUP)
My Lords, to some extent this group of amendments goes to the core of a lot of the potential downsides of this Bill because, whether we like it or not, it is going to be a source of coercion.
If we go back a few weeks to the issue that was drawn to our attention by the noble Lord, Lord Stevens, concerning the role and the purpose of the National Health Service, clearly, that would need to be changed because we are talking here about a mechanism for ending life rather than a service that does its best to preserve life. To anybody who has had to spend a lot of time around hospitals—be it as a consumer of, or a relative of a consumer of, NHS services; or if you have had any role in government, even at regional level, dealing with health services—it is inconceivable that looking at the balance sheet is not going to be an issue for a clinician and a trust. That is the nature of the beast if you are the finance director of a trust and it is over budget, as they nearly all are. In Canada, we see that some people are boasting about the money they have saved by providing assisted deaths. I do not believe for one moment that that factor can be airbrushed out of this equation as far as this legislation is concerned. While I do not necessarily accept or agree with every amendment in this group, it draws our attention to the principles at stake.
It is in those circumstances that we have got into the habit in this debate of euphemisms. We call one thing by a certain name, but we know it actually means something else. In that regard, I draw the attention of the Committee to a debate on assisted dying that took place during the last iteration of this Bill, proposed by Lady Meacher, on 22 October 2021. This is the point I want to try to get across. Incidentally, that Bill had 13 clauses and 10 pages, compared to the 59 clauses and 51 pages we are looking at today. After Lady Meacher proposed her Bill at Second Reading, the noble Lord, Lord Winston, who I think is not in his place, spoke. He said that the Bill should refer to “euthanasia” rather than “assisted dying” as the Bill’s title did not represent what was intended. He went on to provide the Greek definition of what the word “euthanasia” means.
These amendments go to the core of a couple of issues. The first is the rationale behind the National Health Service in the first place, and how it would be changed and turned if it is carrying out a service which is anything but—
Baroness Royall of Blaisdon (Lab)
My Lords, the point that the noble Lord is making is very interesting, but he may have heard my noble friend Lord Winston say previously in the debate on the current Bill that he has changed his mind. He may well have changed his mind about the words that we use in relation to assisted dying.
Lord Empey (UUP)
I accept that that may well be the case. I am simply referring to what was in Hansard in 2021. The noble Lord may have changed his mind, as we all do over our lifetime, and rightly so—if you have a completely solid view of everything throughout your life, it is not a good thing. I am not in any sense trying to demean his position in any way; he is a very highly respected member of your Lordships’ House. My point is that his reference to the euphemism is still valid in my view.
Coming to the nuts and bolts of how things would work in practice, at Second Reading of this Bill, and indeed in previous iterations in which I have had any role, I drew attention to one of the key issues: changing the nature of the service that we are funding. If we decide as a Parliament to make assisted dying, or whatever phrase one wishes to use, a legal activity, that does not necessarily mean that the National Health Service has to pay for it. Can you imagine the finance committee of a trust discussing its budget and getting into an argument? The sums may be modest, but to even put something such as that in this context, when we are talking about life and death, is fundamentally flawed, morally and in every other way. The noble and learned Lord needs to reflect on some of these matters.
Lord Harper (Con)
I am grateful to my noble friends Lord Moylan and Lady Fraser for tabling these amendments. They have put forward some important questions which are worth raising explicitly with the sponsors of the Bill, so that we can hear what their intentions are and how they have reached those conclusions.
I have a number of concerns in this area, which I will set out. On a previous day, the Minister currently on the Front Bench confirmed, when we were debating resources, that if Parliament were to pass this Bill then the Government would ensure that all the requirements in the Bill were funded. That is perfectly right and proper. It was clear from that debate that there was no guarantee of any extra resources and that therefore money would be reprioritised—not just in the National Health Service but in the courts’ budget, given the impact that this Bill would have on the courts. That has clearly been reflected by what Stephen Kinnock said in evidence and by the Health Secretary, who commented on the need for prioritisation.
I do not make as much of the cost of this as some people, because I accept what the noble and learned Lord, Lord Falconer, said on a previous occasion. Compared with the NHS’s overall budget, the cost of providing this service is relatively modest. I have a different concern, which is twofold. First, as has been raised already in the debate, it would be perverse if Parliament were to pass this Bill and the taxpayer were to fully fund an assisted suicide service when it only partially funds palliative care. That would set out a very weird set of priorities and choices to the country—that the taxpayer should fully fund helping to kill people and not fully fund helping them to live well.
My question to the Minister—which does not trespass on the Government expressing a view on the Bill—is, in the event that Parliament passes the Bill, and the Government rightly ensure that it is funded, will the Government ensure that palliative care is fully funded by the taxpayer? This is not a question about taking a view on the Bill; rather, it is about making sure that when the Government publish in the autumn—this is why doing it in this order is not helpful, because we are not going to hear about palliative care services until the autumn—they will fully fund those services so that the taxpayer will ensure that any individual facing a choice has a proper choice and, if they choose palliative care, they will have care fully funded by the taxpayer in the same way that they would have a fully funded assisted suicide. If you do not fund it on that basis, you are not providing people with a proper choice. That is a question for the Government to answer.
Lord Markham (Con)
I let my noble friend finish but I just want to give a bit of my own experience as a former Health Minister. I think we would all agree that clinicians always look at what is the best outcome for their patients, regardless of cost. I want to put very clearly here today that, although I am sure it is not anyone’s intention to suggest that clinicians will somehow be incentivised to push one course of treatment, be it assisted dying or another, for reasons of cost, all our experiences of the health service are that clinicians will always put the welfare of their patient first and that financial considerations do not come into it.
Lord Hamilton of Epsom (Con)
I wish I could agree with my noble friend Lord Markham, but at the end of the day we have a National Health Service and it has to make choices, and we know that the National Health Service is desperately short of money. If it can save money by making sure that people go for assisted dying, I am sure it will do that, on the basis that then it could keep other people alive. Those are the invidious choices that the National Health Service has to make. I always assumed—I will give way in a minute—that, for the proposers of the Bill, one of their reasons was that they wanted to save money. I agree that the money concerned would not be very big, but at the end of the day there is an incentive to save money by ensuring that people opt for assisted dying, thereby saving the National Health Service money. I give way to the noble Baroness.
Baroness Murphy (CB)
My Lords, as a clinician for 50 years in the NHS, I find the noble Lord’s suggestions quite offensive. We have been asked to be kind today and I would ask him to be a little kinder to NHS clinicians in their decisions to try to help people at the end of life.
I just point out to the noble Lord, Lord Harper, that when you are talking about a fully funded palliative care service you are talking about millions and millions, and what has to be allocated. It is exceedingly difficult for the NHS to come to that decision, particularly in light of the fact that insufficient clinicians have been trained in that area, as I am sure the noble Baroness, Lady Finlay, will agree. Certainly, for the assisted dying service we are talking a few thousand—not anything like the sums of money that a palliative care service costs. Let us be realistic about what we are asking for.
Baroness Royall of Blaisdon (Lab)
I shall briefly intervene. I am sure that my noble and learned friend will answer this later, but I want to put on record that nobody who is a supporter of this Bill—an amended Bill, as it goes forward—would ever put costs as the major reason for supporting it. I just want to put that firmly on the record.
Lord Hamilton of Epsom (Con)
Could I come back on that? I never said that it was a major reason: I just said that it was a consideration that had to be made. Budgets are very strapped in the NHS at the moment and, if it can ensure that people who are blocking beds vote for assisted dying, that will save the hospital money. That is just a fact of life.
Lord Deben (Con)
My Lords, I did not intend to speak on this particular amendment until something happened at lunchtime. I have to apologise to the noble and learned Lord, because I am not sure that I can make a joke about it, as he has requested me to in any speech I make. The fact of the matter is that at lunchtime I discovered that my local health trust has withdrawn its payment to Marie Curie, which means that there will no longer be Marie Curie nurses helping people in the final months of their lives; that support has been withdrawn because of the tight budgets in the National Health Service. I am appalled that we are in that situation, but it reminds me very clearly of the fundamental problem of a single-issue Private Member’s Bill, because it asks us to consider something not as one of a series of priorities among which government has to make choices, but as something on its own. That inevitably is a real problem.
The second problem is that anyone who has been a Minister knows how the Treasury works. If you ask it to give you some money to spend and then say, “But we’re going to make these savings”, it always counts the spending and refuses to acknowledge the savings. That is a Treasury mechanism that we have all learned—and I see that a former Health Minister knows precisely what I mean.
The problem with this issue is precisely that: money will have to be spent, but the savings—let us leave aside whether this is a suitable balance—will certainly not be considered, which is why the Deputy Health Minister said there would have to be “reprioritisation”.
So I come to this Committee having been shocked at lunchtime. Perhaps the Chief Whip should not have allowed us off for lunch: then I would not have been able to see this. However, the truth is that I am shocked by the fact that one of the most important palliative care services is now going to be ceased for the part of the country in which I live. That therefore brings me back to the amendment. I think we have to say to ourselves, very clearly, that, if we are proposing to spend money on this, it is quite clear from the Government that that will mean “reprioritisation”, which actually means cutting other money in order to save enough to pay for this.
I hope the noble Baroness will not be upset by this, but I do not understand how the Government fail to do this: in all the advice they give us, they refuse to tell us how much they think this will cost. That is a duty of the Government. They should tell Parliament, if it is a Private Member’s Bill of this sort—I will give way.
Lord Falconer of Thoroton (Lab)
We produced an impact assessment of the Bill with detailed costings, provided by the health service, so to suggest to the Committee that the Government have not provided the costing is inaccurate.
Lord Deben (Con)
We have already told the noble and learned Lord what we think about the impact assessment. We have been asking for an updated impact assessment which takes into account the debates we have had and the assessments we have made. The Government have said they will not do that—that is what I am referring to. I want to see an absolutely up-to-date impact assessment based on the debates in which we have expressed and explained real issues which have not been raised before, so that we can, first, know how much it costs and, secondly, begin to ask ourselves, “Is this the priority?”
I will end on this. Is it a priority to provide people with the free chance to kill themselves and not provide people with Marie Curie nurses so they may live the end of their lives in a happier and better place? Anyone who suggests that we get that priority right by funding assisted suicide rather than Marie Curie nurses seems to me to be saying something that the public would not accept. One of the problems with this whole debate is that we have never been prepared to tell the public what the real effect of this is. Therefore, I very much support this amendment—not that I would normally support the kind of position my noble friend raises in his particular way, but he did it most elegantly. I support it entirely because, at long last, we are talking about the facts and what this really means for the people of Britain.
Lord Jackson of Peterborough (Con)
Before my noble friend sits down, he might be interested to know that we have been here before. He will know that, in 2012, as a result of replies to freedom of information requests about the discredited Liverpool care pathway, it was revealed that £12 million was promised to various trusts across the country to hit targets in respect of the Liverpool care pathway. There was fiscal inducement to facilitate the death of patients. So this is not a scare story; we have seen evidence of it within living memory.
Lord Deben (Con)
I thank my noble friend for that intervention, and it is important. I have been trying to be very careful not to suggest that those in favour of this Bill are in favour of it as a money-saving operation. I do not believe that is true, but I have to challenge them with simply this: once this were in the system, it would be a serious temptation.
There are two big temptations in this Bill. The first is summed up by that old phrase “Where there’s a will, there’s a relative”. There is a real issue about coercion. The second great problem is that you change the fundamental relationship between the ill person and the doctor. You also create circumstances in which it is very likely that it would be cheaper for people no longer to be there. If anyone thinks that that creates confidence, either in the medical profession or in the National Health Service, I do not.
Baroness Berridge (Con)
For the accuracy of the record, I am grateful that my noble friend referred to a story that I presented to him at lunchtime because it was relevant to Suffolk. Marie Curie’s overnight nursing service—the part of the service that offers palliative care in Ipswich and Suffolk—will end after the NHS withdrew funding. The service supported 470 patients and delivered 15,385 hours of vital care in the last financial year. It relates to my noble friend’s particular area of the country. I know I was not here at the start of the group but, for the accuracy of the record, I have intervened.
Baroness O'Loan (CB)
My Lords, I thank the noble Lord, Lord Moylan, and the noble Baroness, Lady Fraser, for these amendments. There is a very serious issue here, evidenced by the nature of the conversation we are having, because it is a conversation about realities. The noble Lord, Lord Empey, said that it was time we started using the language that described exactly what we are doing. I think that is what we are doing now. We are talking about how this is going to be paid for and who should pay for it. How should it be managed?
We have seen the Canadian experience. The noble Baroness, Lady Grey-Thompson, spoke about wheelchair access. In Canada, it is regularly reported that people who cannot get wheelchairs are offered assisted dying instead. I grant you that that would not necessarily apply in this particular Bill, but you can see how, with mission creep and with changes, this could happen. We could end up in a situation in which we are making the kind of decisions that the noble Lord just referred to in this matter.
I must declare that I have an interest, because I am a trustee of a hospice—an unpaid trustee, I would add, and it is not in my register of interests for that reason, but it is relevant to this debate.
The noble Baroness, Lady Finlay, defined the variety of costs attached to the proposals quite clearly. I have to ask, following the noble Lord, Lord Deben, if the estimate of £2,000 is in any way realistic for providing a service which requires for each individual the cost of clinicians, the commissioner, panels, admin staff, communications, monitoring and audit, et cetera. That is to say nothing of maybe a national help service, independent advocates and all sorts of other things. We know that to die at Dignitas and places like that costs an average of £10,000, not £2,000. I would like the noble and learned Lord to ask the Minister if we can have a proper assessment of what is currently planned might cost and where it is to come from.
I have another question for the noble and learned Lord, because it is not the Government who pay; it is us. It is taxpayers who pay. If the noble and learned Lord, Lord Falconer, rejects these proposals or something which approximates to taking the cost away from the National Health Service—as the noble Lord, Lord Deben, says, it is in such a parlous state that palliative care services are being extinguished or diminished very significantly—does he think that the public and the voters will think well of a Government who fund suicide while not funding hospices properly? Does he think it will enhance trust and confidence in the Government?
Baroness Levitt (Lab)
My Lords, I will speak only to the amendments about which the Government have significant operational workability concerns. Before I do so, I want to say a few words on the general points about funding raised by a number of noble Lords, including the noble Lord, Lord Harper, the noble Baronesses, Lady Fox and Lady Grey Thompson, and others.
I make it absolutely clear that I entirely understand the point that the noble Lord, Lord Deben, is making and why it might seem as though the choice is being restricted if you do not actually know the amounts involved, but I reiterate that it is for Parliament to decide whether this service should be provided and, if so, whether it should be publicly funded. If that decision is made, the Government will fund it. I am not evading the issue when I say that I simply cannot explain how that will be done, because that would be to put that ahead of Parliament’s own decision. We cannot possibly start, for example, putting aside a war chest for something that Parliament may decide that it does not want. As far as priorities are concerned, as I say, it is not a matter of evasion; it is a matter of principle.
It is also not right to assume that funding this, if that is the will of Parliament, will involve taking money away from other parts of the health service. That is not what the Government are saying; we are simply saying that the funding will be made available if that is what Parliament wants. My noble friend Lady Merron, the Health Minister, has written twice on this subject, and those letters are available in the Library for anybody who is interested. As for palliative care, there is an absolute commitment by the Government to increase funding for palliative care and make sure that palliative care is offered properly, irrespective of what happens in relation to this.
As for the noble Lord, Lord Deben, of course I am not upset by what he says about the impact assessment—as if I would ever be upset by anything that he says—but we are doing what is usual, which is to deliver the impact assessment at the outset and, as with other Bills, a further updated impact assessment will be provided following Royal Assent, if we get to that stage. There is a logic to this, because there are so many different elements to what has been debated in Committee that to provide a costing for each and every one would probably keep us here for as long as we are here debating all these amendments anyway. It simply cannot be done. It is not practical. I am not upset, but I am simply saying that we cannot do it and we will not do it until Royal Assent.
Turning to the amendments in the name of the noble Lord, Lord Moylan, these are collectively intended, as we have heard, to prevent the establishment and running of this service being publicly funded. Your Lordships may wish to note that, if passed, these amendments would create an internal inconsistency with Clause 41(5), which requires that the provision of voluntary assisted dying services must be provided free of charge.
Amendments 835 and 868, in the name of the noble Baroness, Lady Fraser, propose a delivery model whereby the Secretary of State must make regulations for the assisted dying service, which would be delivered only by private providers. The key workability risk here is that the new clause created by Amendment 835 would duplicate Clause 41, but with additional constraints, and that would create legal uncertainty, when the Act is looked at in the round, about the limits on the Government’s powers when commissioning a service. The Committee may also wish to note that this amendment may have implications for the devolution settlement, as Wales and the Welsh NHS trusts are implicitly included, which potentially constrains the powers for Wales in Clause 42.
Lord Falconer of Thoroton (Lab)
This group concerns the question of funding. First, the noble Lord, Lord Moylan, raised the question: should the people who benefit from this have to pay for it? Secondly, the amendments from the noble Baroness, Lady Fraser, raised the question of whether it should be free to the patient. Could it be provided by private providers? Separately, there were questions along the lines of: will this change the nature of the relationship between the doctor and the patient? Finally, there were questions over whether this might lead somebody to urge people to take an assisted death.
I start with the provisions of the Bill at the moment, which, subject to the amendments to Clause 41 that I propose, require that the integrated care board, or NHS England or the Secretary of State, commission the services. A separate provision, in Amendment 753A, makes provision that, in practice, they have to be free for the person getting them.
The principle that underlies that approach—my noble friend Lady Levitt is right and this is the choice that the Bill makes—is that it will be available free to somebody who wants it and who satisfies the conditions. The reason for that is that we do not want to create a two-tier system where you can have an assisted death only if you can afford to pay for it.
In evidence to the Commons Public Bill Committee, Dr Michael Mulholland, the honorary secretary of the Royal College of GPs, said:
“Whether it occurs in the NHS is not our decision, but we would be very concerned about health inequalities creeping into any part of the health service … If the Bill comes through, we will want to make sure that there is not a differential in who is able to access it”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee, 30/1/25; col. 278.]
The amendments of the noble Baroness, Lady Fraser, do not affect that. The amendments of the noble Lord, Lord Moylan, do, and it is for that reason that I oppose them.
I will first deal with the amendments of the noble Baroness, Lady Fraser, which would restrict the model that could be used to private providers only—albeit that she is not saying that it should not be free. I agree with what my noble friend Lady Levitt has said, to the effect that the way it is delivered should not be restricted. I would therefore not be in favour of the amendments of the noble Baroness, Lady Fraser, in that respect.
Lord Harper (Con)
Does the noble and learned Lord not see that the argument that he has just made in favour of having a fully funded assisted suicide service is exactly the mirror of the argument that I made on palliative care? The argument from the quotation that he gave is exactly the argument that I made. If you fully fund this proposal but you do not fully fund palliative care and make that universally available at high quality, you have an inequality where wealthier people can get palliative care and poorer people cannot. On previous occasions, the noble and learned Lord has made it quite clear that he is comfortable with those being reasons for people seeking an assisted death. I do not think that they are. You have to fund both services on an equal basis. Does he agree?
Lord Falconer of Thoroton (Lab)
The impact assessment suggests that in year 10, assuming the highest possible cost, it would cost £37 million in total to do assisted dying. This is not by reference to any savings and it includes not just the health elements but also the panel and the assisted dying commissioner. It is plain that palliative care should get as much funding as possible. It is patchy throughout the country and it needs more funding. For me, it is not right to delay the option of assisted dying, particularly when the amount of money that we are talking about to fund assisted dying is so much less than that amount of money, which I would fully support being provided as much as possible. I understand what the noble Lord, Lord Harper, is saying. I am fully behind him if he is saying, “Let’s all put our backs into getting as much money as possible for palliative care”. But I do not accept the argument that the inadequacy in some parts of the country of palliative care is a reason for delaying the assisted dying Bill.
Baroness Finlay of Llandaff (CB)
Just as a point of information, does the noble and learned Lord accept that there is evidence that if specialist palliative care was available across the country on an equal basis, that in itself would result in a saving of around £800 million a year, because patients would be getting better care and unnecessary investigations and so on would be avoided? So there is a cost transfer. The problem at the moment is that we have areas without services and therefore patients do not have choice. If we are talking about patient choice, there must be equipoise in that choice argument.
Lord Falconer of Thoroton (Lab)
I am absolutely sure that if there were proper specialist palliative care of the highest quality—we would hope that there would be—it would lead to savings. I honestly do not think that the £37 million cost is a reason for delaying this because it would in some way hold back the provision of better specialist palliative care, which is something that we are all in favour of.
Baroness O'Loan (CB)
I am concerned about the figure of £37 million being articulated as the absolute cost of this service. I find it somewhat difficult to believe that it could be the cost. If we have regard to the costs of similar public organisations that are already set up, the running costs alone run into millions. We are going to be talking about a national service for England and Wales that, presumably, will be provided in the patient’s location—the death will take place not where we want it but where they want it—and therefore there will be a lot of costs. I firmly believe that they have not been costed into the figures that the noble and learned Lord and the Minister have given us.
When I go shopping, I see whether I can afford what I want to buy. Yet we, as a Parliament, are being asked to decide whether we want to do this. One of the things that we should responsibly take into account is cost, otherwise we would not have had an impact assessment. We are being asked to consider it on the basis that it will cost £37 million and that that is peanuts—well, I wish I had £37 million pounds put into palliative care now. This is not an accurate figure.
This is the only point that I want to make. Can the noble and learned Lord put his hand on his heart and say to me that he really believes that this is what the service will cost, given the number of people who may avail of it and the number of safeguards that need to be introduced into the Bill because of its very significant flaws?
Lord Falconer of Thoroton (Lab)
First, I am grateful to the noble Baroness, Lady O’Loan, for her speech, rather than a question clarifying something. Secondly, as I have said, the figure of £37 million has been provided in the impact assessment for the 10th year. I note the points that the noble Baroness has made. Maybe the right course for her is to send a detailed letter raising the questions with the Department of Health and Social Care and the Ministry of Justice, because it is their assessment—and I do not dissent from it.
The Archbishop of York
I entirely accept that those who are proposing the Bill do not propose it for the reason of trying to save money. I also entirely accept the desire from everyone in this House for better-funded palliative care. However, I need something to be explained. Taken that palliative care is inadequate and underfunded, and taken that there are huge regional variations, what I do not understand is the noble and learned Lord’s confidence that this will not lead to coercion of vulnerable people in places where palliative care is not available and cannot be afforded, which will lead to unintended consequences. I entirely accept that he does not want those consequences either, but I ask him to give me some confidence, if he can, that this will not follow.
Lord Falconer of Thoroton (Lab)
I will try to give the most reverend Primate confidence. First, decisions about treatment at the moment frequently have to be made in the context of what everybody in this Committee would think was inadequate palliative care. There is scope for coercion there with no safeguards. Secondly, people have the ability to go abroad to get an assisted death, and there is scope for coercion there. In both those situations, there are no safeguards whatever. The landscape in which those choices are made, whether about continuing other treatment or about going to Switzerland, has absolutely no protections whatever. This Bill provides five levels of protection. I am completely satisfied that this is a safer system than the current law, and I very much hope that gives the most reverend Primate confidence that the Bill is the right thing to do.
On the funding of palliative care, I very much hope that the Government and other people will provide more money for palliative care. The experience in many countries is that the introduction of an assisted dying Bill leads to an increase in the amount of palliative care, because people debate and think about how you die. I hope those things put the most reverend Primate’s mind at rest. The risk for coercion is already there, and this provides safeguards. I hope the introduction of the Bill will produce more money for palliative care, but unfortunately I cannot give the most reverend Primate any guarantees of that.
Lord Moylan (Con)
My Lords, I shall be very brief. I am grateful to all the noble Lords who spoke in this short and valuable debate. I tabled these amendments in the first place to give the noble and learned Lord the opportunity to explain why this proposed service should be funded by the taxpayer—the unwilling taxpayer, it might be said, in the case of those who have a principled objection to it. I listened very carefully to what he said, and he gave one reason only: failure to make it available for free would contribute to an increase in health inequalities. That proposition rests entirely on the assumption that this is a health treatment. It is not; it is poisoning people. It is completely unpersuasive that this should be justified as contributing to health inequalities or otherwise. For that reason, I would certainly want to bring these amendments back on Report and invite the House to take the view that we should not fund this from public resources. In the meantime, however, I beg leave to withdraw the amendment.
Lord Murray of Blidworth
“(f) providing guidance regarding the practice and procedure of Assisted Dying Review Panels (see Schedule 2).”Member’s explanatory statement
This amendment and two others in the name of Lord Murray of Blidworth addresses an issue raised by Select Committee witnesses namely that the Commissioner is not under an obligation to give guidance to the panel on procedure, which could mean it is entirely at each panel’s discretion how they work. These amendments make the provision of guidance mandatory, following consultation.
Lord Murray of Blidworth (Con)
My Lords, it is a long time since I last spoke on this Bill, at about 3.20 pm on Friday 12 September, the first day of Second Reading. In that speech I outlined my concerns about the panels proposed in Clause 17. It gives me great pleasure to introduce the group of amendments to those panels. I will come to my amendments in a moment.
The concerns in my Second Reading speech, which were reflected by a number of others, were also seen in the evidence provided to the Bill Committees in the other place and here. Of course, the addition of the panels happened organically during the passage of the Bill through the Commons and, as a result, there have been adverse comments, particularly, as we will see, by legal stakeholders concerned about how the proposed system works and about the lack of detail on the panels in the Bill.
It is perhaps of note that the Justice Minister, Sarah Sackman, when asked by the noble and learned Baroness, Lady Scotland, about the lack of policy definition regarding the process and the fitness of those adjudicating, said that
“the commissioner, in establishing the office of the commissioner, will be responsible for producing the procedural rules governing the panel’s activity and, potentially, guidance that will govern how they go about their work”.
She then said that the noble and learned Baroness, Lady Scotland,
“is absolutely right that what it does then is give the commissioner the powers to go away and develop the governing practices of the panel”.
The Minister suggested that that was not unusual in the establishment of bodies of similar nature, but many do not share the somewhat laissez-faire approach that she adopted there.
The Law Society raised specific concerns about how the panels would operate. Kirsty Stuart noted in her evidence:
“What is unclear at the moment is where the panels will be held and how people would know about them”,
and whether they would be public or private. In the Law Society’s written evidence, it was said that Parliament should
“clarify how Assisted Dying Review Panels would deal with and decide cases”,
and that the Bill
“leaves substantial details about how the scheme would operate to be dealt with in secondary legislation and guidance”.
Professor Charles Foster also criticised the lack of statutory requirements for the panel’s procedure. He noted:
“There is no requirement for the panel to ask anybody, including the applicant, anything at all, or to test the evidence in any way. Cases can be dealt with in private. There is no obligation to publish the reasons”.
Professor Ruck Keene—I declare an interest that he and I are in chambers together—noted that the panel’s design suffered from being developed “on the fly” and that it was “neither fish nor fowl” regarding its powers. He noted that the policy had not been formed and said that the panel had
“too few powers to deal with more difficult cases”.
With my amendments I hope to address some of the problems that have been highlighted. My Amendment 925A concerns the power to appoint the members of the panel. At the moment, the position is that the panel members would be self-selecting. By setting various criteria for the appointment of panel members, this amendment would reduce that risk. It says:
“A person may only be appointed to the list following … an independent appointments process involving tests, interviews and role-play … professional vetting”—
that is perhaps topical—
“and … in the case of a legal member, a recommendation from the Judicial Appointments Commission”.
My next set of amendments deal with the question of panel procedure. Amendment 142 would require that the commissioner, when providing guidance to the panels, has an obligation to produce that guidance. In the way the Bill is structured at the moment, there is no requirement to provide guidance; this measure would introduce that requirement. Amendment 937 would make that mandatory. Amendment 938 would require that the guidance must be produced following consultation with various relevant bodies: the Tribunal Procedure Committee; experts in domestic abuse, old-age psychiatry and neurodivergence; and disability groups. Amendment 463 is intended to address how the procedure is to work.
Finally, my Amendment 464 deals with powers of evidence gathering. As I noted at Second Reading, at the moment the panel has fewer coercive powers than a parking adjudicator. This body is going to be determining matters of life and death, and ultimately it needs to know whether there is coercion and whether the wishes of all involved have been taken into account. Amendment 464 is drafted in such a way that the panel shall have the powers and privileges of the High Court. I appreciate that it is far from perfect. It is a probing amendment so that I can hear what proposals the noble and learned Lord may have to improve the powers of the panel and to rectify the obvious deficits that exist in the current system proposed in the Bill. I beg to move.
Lord McColl of Dulwich (Con)
My Lords, I wish to speak to my Amendment 941. As a medical professional, I know only too well that medical interventions can be driven by financial motives; organ harvesting for a profit is one such example. When medical interventions are financially motivated, the best interests of the patient may be compromised. This amendment would help to prevent such compromise. It would deter the sort of financial abuse that could happen during the course of the assisted suicide process and would protect, in particular, the most vulnerable. I commend it to the Committee.
Lord Sandhurst (Con)
My Lords, I wish to speak to 21 amendments in this group. It is my misfortune that they have all been shoved together, giving me around 30 seconds on each one.
It is really important that the powers of the panel are clearly defined and that what we end up with is in accordance with what Parliament wants and intends. Each of the amendments that I have put down comes from either the Law Society or the CLADD group; to this extent, I endorse entirely what my noble friends Lord Murray and Lord McColl just said. The management of evidence gathering in the process is vital. My amendments aim to try to put that into some sort of proper regime that is set out on paper before the Bill becomes statute.
Amendment 929A is aimed simply at panels being able to consider cases with expertise appropriate to the particular nature of the case. It says that
“the Commissioner must have regard to the nature of the expertise required to determine the particular circumstances of the person”
in question. We know that there is a lack of psychiatrists in this country—it is in the public press all the time—so it is important that, when this process kicks off, there are sufficient psychiatrists who are willing and able to sit on these panels and to devote the necessary time, because they will have to make assessments. There is a risk that the commissioner may struggle to find enough of them.
Amendments 922 and 923A ask that there be sufficient people and say that they must be specified in regulations. In particular, they must have expertise in relevant matters as set out in regulations, so the Secretary of State would have to identify what expertise will be required and who is to address it.
Amendment 927A asks that one of the panel’s members
“must be a legal member”.
We cannot possibly have panels that do not have a lawyer on them. There must be a legal member with the expertise to deal with the particular case. Indeed, I note that, in giving evidence to the Select Committee, Sarah Hughes of Mind said that
“it is really clear that the safeguards described in the current Bill are not adequate”.
The British Association of Social Workers has also said that the current safeguards are not enough. Those are disinterested, important bodies with expertise in this area.
Amendment 928 aims at the target of medical expertise. There must be someone on the panel who can take a properly informed view of the diagnosis being given to the applicant.
The point of Amendment 473 is to insert the word “evidence”, which is very important, because it is not clear what the status of these panels and of the material given to them will be. The word “evidence” means that, or will have the effect that, the panel will clearly operate as a formal body. It would not make it a tribunal, but it would make the process formal and the panel act properly.
Amendment 479 would enable the panel to
“require a local authority or an NHS body to arrange for a report to be made dealing with such matters relating to the person as the panel may direct … or … such other person as the authority, or the NHS body, considers appropriate”.
There is more to it. This is the equivalent of Section 49 of the Mental Capacity Act 2005, which gives the power to the Court of Protection to get reports from the NHS or local authorities in order to allow it to discharge its inquisitorial powers. We need something similar here. It would reinforce the seriousness of the panel.
There are other provisions in this amendment to make it plain that the panel can appoint an expert to test evidence if it does not have its own expertise. It needs to have that power. In an appropriate case, the panel may hear evidence on oath, but it will be under no obligation to. That is in my proposed new paragraph (h). There may be cases where it is very anxious about some of the things it has heard, and it may think that putting someone on oath makes them think very seriously about telling the truth, the whole truth and nothing but the truth.
I will move on. I am trying to take this at a gallop.
Amendment 465 is another Law Society amendment. It would show that, although the panel is not a court, it is a formal body by using the word “evidence” in the provisions. That word will make the panel take it seriously. I am not suggesting that the people on it will be lightweight people, but the process is important. Those of us who are lawyers in particular will know that process is important, and it affects how panels and tribunals conduct themselves. If it is not to be called evidence, it will not have that same effect. The Law Society suggests that it is currently unclear precisely what status the information being received will have. It will not be a court, but it will be a formal body, and that provision occurs in some other amendments—Amendments 470 and 476, and possibly elsewhere.
How does the noble and learned Lord, Lord Falconer, understand the panel’s evidence-gathering powers? Will it be exempt from the normal rules of medical confidentiality and data protection? Will it be able to gather evidence from witnesses even if the patient does not want details to be shared? Will it be an executive public authority, subject to the limits that apply to the Government, or will it be a judicial body with unique powers? To say it is quasi-judicial does not answer the question; it is either one or the other. We need to know what powers it will have. Will it be those of an independent tribunal or not? This picks up the observation made by my noble friend Lord Murray.
Amendment 494 would mean that the panel would have to notify relevant bodies if it considers that the person meets the criteria but the request was made because the service provisions had failed in the past. This would be important in monitoring the Bill’s impact on health and social services. It would show whether someone has come for this because provision has not been made. That would be important in looking forward and seeing how we can improve the delivery of health services to the public. It is not a barrier, but it will provide valuable information.
Amendment 934, another Law Society amendment, would require the Secretary of State by regulations to make provision for how the chair of a panel is to decide whether to grant a person’s request that the panel sit in private, including the factors to be taken into account and the processes to be followed. Will it be sitting in private? Will it be sitting in public? How is this to be addressed? These are important practical questions that are bound to arise on the ground.
Amendment 934A, another Law Society amendment, states:
“For purposes of the law of contempt, where a panel determines a referral in public, then unless the panel provides to the contrary, publication of information about the person to whom the referral relates shall be treated as contempt of court, as if (in any relevant legislation) for the word ‘court’ were substituted ‘panel’”.
The panel will not be a court, but it will be hearing very sensitive information in public hearings by default. These amendments seek to ensure that such information about a person is not made public. The late and, I would suggest, great Sir James Munby remarked that
“judges are kept up to the mark by two things—having to comply with proper procedure and being exposed to the public gaze”.
He said that the same thing should apply to panels.
The Law Society told the Select Committee:
“What is unclear at the moment is where the panels will be held and how people would know about them”.
Obviously, consideration about whether the panels are private or public, and then where the powers would come from potentially to restrict the information and then being able to be made—
Captain of the King’s Bodyguard of the Yeomen of the Guard and Deputy Chief Whip (Baroness Wheeler) (Lab)
Will the noble Lord please wind up? He is over his time.
Lord Sandhurst (Con)
I hope the Committee will indulge me a little. All I will say is that I ask noble Lords to read carefully my amendments, which all come from the Law Society or CLADD. I will say one thing. I hope noble Lords will forgive me, but it is clear that this group will go beyond today, I would have thought, looking at the number of amendments there and the fact that we only have two hours left. If I need to leave—
Lord Rooker (Lab)
The noble Lord should sit down now and come back, still on this debate.
Lord Weir of Ballyholme (DUP)
I rise to speak to two amendments in my name in this group, Amendments 496A and 496F. At the outset, I want to give an apology to the sponsor and to the Committee as a whole, in line with the Chief Whip’s procedural recommendations. Given that I suspect that this will carry on at least until 6 pm, I will unfortunately have to leave almost certainly before the end of this debate to catch the last flight home to Northern Ireland.
Both these amendments, like a number of the amendments that I have submitted, deal with concerns that have been raised with me by disability groups. We are aware, again without reiterating the detail of this, that a wide range of concerns has been raised by a large number of groups representing the disabled, which vary between having some concerns and total opposition to the Bill. As we know, no disabled group has expressed support for the Bill. Where concerns are being raised, it is important and incumbent that, where we can try to improve the Bill by trying to take on those concerns, we listen to them.
I will deal with the two amendments briefly, Amendment 496A would add an additional ground to the grounds for reconsideration: failure to adequately consider or to be inconsistent with evidence of disability-related vulnerabilities. I suppose the aim of this is to provoke an examination of the extent to which reconsideration focuses on the particular needs of the disabled. It may not necessarily be the route that I would pursue on Report, but the purpose of this is to ensure that the commissioner, when looking at this, focuses explicitly on the impact on disability and vulnerability.
Baroness Cass (CB)
My Lords, I rise very briefly to draw attention to Amendment 928 in the name of my noble friend Lady Hollins, who cannot be in her place today. There are two ways of getting additional expertise: one is through consultation and the other is through having additional experts on the panel. Her amendment provides for having a safeguarding expert, a physician and a clinical psychologist on the panel, and she sets out the qualifications for each of those individuals. That would give a greater pool of expertise that could be selected from, appropriate to the needs of the particular person whose circumstances were being considered.
Lord Jackson of Peterborough (Con)
My Lords, I will focus my remarks on Amendment 462B, in my name, and support Amendments 463, 464 and 465, to which I have attached my name. Like my noble friend Lord Murray of Blidworth, this is the first opportunity I have had to contribute to this Committee’s deliberations and, like him, I last spoke on Second Reading.
The amendment requires a public notice to be issued 28 days before the panel intends to sit, which would enable members of the public to attend and potentially engage with the proceedings. I want to say in advance that this a probing amendment. I understand further work would need to be done, probably through regulations, to specify what any notice must entail and consider any further matters around privacy. I am open as to whether 28 days is the right notice period. Amendment 439, in the name of my noble friend Lady Maclean of Redditch, does a good job of addressing many of these concerns, in a way that aligns closely with existing practice directions in the Court of Protection.
However, those caveats aside, I trust that this amendment probes an important point. Schedule 2.6 states that:
“Panels are to determine referrals in public”,
but the public nature of the panel is surely illusory if interested parties are not notified that a panel hearing is taking place. How would anyone know when and where to turn up? I do not think we can gloss over this as a minor omission. Giving evidence to the House’s Select Committee, at page 143 the Law Society listed this issue among the things it is “really concerned about”. As it explains, it is unclear at the moment where the panels will be held and how people will know about them. That needs to be clarified and further information needs to be provided.
The point was also well made by the late Sir James Munby, the former president of the Family Division, whose comments continue to have an important influence on our deliberations. He described the Bill’s silence on a notification mechanism as “an astonishing omission”. He went on:
“Quite apart from all the other reasons why it might be thought desirable to make such provision in the Bill, the participation of others is necessary if the process is to have that degree of rigour which is essential if it is to be capable of identifying and preventing possible abuses, and in particular be adequate to detect what may be very subtle external pressures, and if it is to command public confidence”.
He was absolutely right. Supporters of the Bill have talked about how they intend this proposed law to bring end-of-life decisions “out of the shadows”. However, as drafted, the Bill provides for individuals to die in secrecy with the intentional assistance of the state. We cannot ignore the impact that this secrecy will have on the grief of families who hear that their loved one has died by assisted suicide only after the event, particularly if they possess relevant facts such as evidence of coercion or mental illness. The Committee may be aware of the tragic death last year of Maureen Slough from Cavan, Ireland. Her family reported their devastation at being informed of their mother’s assisted suicide via a WhatsApp message from a Swiss clinic. The same message also informed them that her ashes would arrive by post. The circumstances behind Ms Slough’s death were even more tragic. First, her brother, a UK solicitor, said Maureen had provided the clinic with “letters of complaint to medical authorities in Ireland in respect of bogus medical conditions” which the clinic allegedly used to support her application. Secondly, the clinic claimed to have received what appears to have been a forged letter from her daughter Megan, acknowledging her mother’s plans. These details, together with the fact that Ms Slough had long struggled with mental illness, suggest that there were potential red flags which may have been identified had the family been duly notified.
While supporters of the Bill may argue that the panel process is designed precisely to avert this kind of situation, I respectfully ask how we can be so sure. Remember that the panel operates on only a civil level of proof—in other words, on probability. To use an example from Ms Slough’s story, it is likely that the panel would have concluded, without hearing Megan’s claim that she did not write it, that the letter was more likely to be a forgery and so warrant further investigation. Perhaps so, but we cannot be sure and that is the problem.
We must also consider the importance of notification in light of the Bill providing no clear mechanism for families to intervene at a later stage once an eligibility certificate has been granted. To refer again to the late Sir James Munby, in his very eloquent words,
“the Amended Bill is entirely silent as to how the panel is to deal with the kind of issue exemplified by the Canadian case of AY v NB … where the patient’s partner intervened and obtained an interim injunction because of concerns about what was happening. What if the patient’s partner and relatives, excluded from participation in the panel process, discover, only after the panel has granted a certificate … facts of the kind which in AY v NB prompted an eleventh-hour intervention by the Canadian judge?”
This is a major hole in the Bill and, as it stands, if interested parties are to intervene, it must be at the panel stage and they must be informed of the panel meeting so that they can apply to submit evidence as necessary.
Finally, I want to address concerns that some noble Lords may have around the amendment’s requirement to publish the names of people referred to the panel and the potential impact this may have on privacy. I have thought long and hard about this. As I alluded to before, there is great merit in the proposal by my noble friend Lady Maclean in Amendment 439. However, one weakness is that it requires the commissioner to notify any other person properly interested in the welfare of the person. There is no clear way of establishing who they might be. How is the commissioner to know which friends to contact? One may just have vital information. Therefore, there is a benefit in requiring a more general notice.
I also observe that there are times where public interest is so great that it outweighs privacy concerns. Marriage, as a public institution, is a good example of this. I based the amendment on its notification requirements. In that context, the interest that we all have in defending that public institution means that a general notice is issued so that anyone can come forward with evidence of coercion or any other legal impediment. In considering public interest, we need to appreciate what is going on here.
In the words of my noble friend Lady May of Maidenhead at Second Reading, this Bill gives the state a licence to kill. Whatever our views on the subject, in handing the state this power there is surely great public interest in demanding maximum oversight and safeguards. The panel process should not be seen as totally analogous to the situation in the Court of Protection, where greater anonymity protections would normally apply. It is important to note that most cases in the Court of Protection involve patients who clearly lack capacity and have not consented to the process. Instead, cases usually involve best interest disputes between families and medics. However, in this process it is a basic requirement that the patient be able to consent.
In closing, I add this. Even if the House desires a more anonymised process, we need to debate the details of it. What restrictions would there be on media reporting? Who would determine the circumstances in which these restrictions apply? Perhaps the noble and learned Lord, the sponsor, can address these issues in his remarks. Without answers to these and other questions, the Bill risks the assisted suicide process being more shadowy and less transparent than would apply in cases in the Court of Protection. I do not think that this is acceptable.
Baroness Hayter of Kentish Town (Lab)
My Lords, I am quite shocked at what I have just heard. However, before I respond to that—I am sorry, I really am quite shocked— the noble Lord, Lord Murray, has said again, and it was objected to last time I raised this, that this is a life-or-death matter. These people are dying anyway and, therefore, a refusal of assisted death does not mean that the person will continue to live. They are going to die anyway and, indeed, may still commit suicide. We seem to forget that. If they do not get the assisted dying, they may still go abroad or commit suicide themselves, in ways that we know are not always reliable.
Baroness Hayter of Kentish Town (Lab)
It is Committee; the noble Baroness can come in later.
As I say, the noble Baroness, Lady Finlay, will be able to speak to Amendment 459 afterwards. One consideration has to be that the person has informed their children of their decision for an assisted death. I cannot be the only person who knows people for whom there is completely no relationship between parent and child. The child could be aged 60 and have been living abroad for years. They might not know their parent is ill and may not have been in touch with them for 40 years. But somehow we are going to have to try to track down children. Also, the ill person may not want their child to know that they are ill. We are all old enough now; we have had lots of friends go through this. I had a friend who did not want his daughter to know he was terminally ill because she was facing her own health issues at that time. But this would somehow lay down that despite the desire of a father, in that case, nevertheless that child has to be found and told that their parent not only wants an assisted death but that their parent is dying and wants an assisted death.
I really wonder about this denial of agency. If that person does not want to tell their child, according to Amendment 459, they have to make
“adequate arrangements for another person to inform the children”—
who might live abroad, or whatever—
“of the assisted death and provide bereavement support”.
I just wonder what world we are living in where, when someone is reaching the end of their life, some agency of the state demands that they tell them whether they have any children, whether they know that those children are still alive and where they are, and has to tell that child that their parent is ill and that—in a way, a smaller matter—they want to bring forward that death a little bit so that it is not too bad at the end.
Some of these ideas seem to me to exclude from our consideration the patient concerned. They seem to put everyone else in a position of taking decisions. The noble Baroness, Lady Cass, spoke earlier about the amendment that wants more and more specialist advisers brought in. Can we just sometimes revert to remembering that we are talking about seriously, terminally ill people who surely have some agency over their life? If they are refused this, they can still commit suicide but they will probably do it, as a friend’s father did, by going into the garage, blocking the bottom of the door so that no air can get through, turning the engine on and killing themselves that way. I wonder sometimes whether we are remembering that people are facing a terrible end and we just ought to have a little respect for them.
Baroness Finlay of Llandaff (CB)
May I intervene on that, given that my amendment is being questioned? Let me explain. When looking after people who are parents, a conversation is often about what the children know. Telling the children about someone’s impending death is extremely difficult for most parents. Usually, it is because the person who is ill wishes to protect those children; they think that, by not telling them and preparing them, they are somehow protecting them. The way children are informed needs to be age appropriate and appropriate to where that child is.
I do not suggest in this amendment that it should be an agent of the state. The amendment refers to making
“adequate arrangements for another person”.
That could be anybody. It is about asking whether they have somebody who will inform those children—or not—about the death. As for bereavement support, it might simply be about telling them in person and letting them talk about it for an hour over a cup of tea, or it might be much longer, depending on the needs of the individual—because bereavement is a very individual thing as well.
I am concerned that we could legislate and somehow believe that, by someone having an assisted death, rather than a death for which there has been preparation, the impact on any children in a family will be less, because the evidence is that it will not.
Lord Falconer of Thoroton (Lab)
I do not know whether I am allowed to intervene, because I do not know whether the noble Baroness is intervening or speaking to her amendment.
Lord Farmer (Con)
I speak in support of amendments on behalf of my noble friend Lady Maclean of Redditch, who unfortunately cannot be in her place at this hour on a Friday afternoon. I refer to Amendments 445, 483A, 495B and 941A. First, Amendment 445 would require the panel to consider signs of fluctuating capacity. That issue has been addressed in previous groups but needs raising again briefly here. As Professor Martin Vernon told the Lords Select Committee,
“fluctuating capacity is an extraordinarily common issue, but none the less somebody may retain capacity at some point during their dementia diagnosis sufficient to make a determination as to whether they wish to end their life”.
As has been stated, about two-thirds of people with dementia have never received a formal diagnosis, so it is incumbent on the panel to consider that possibility and take evidence on whether it could be the case. Given that the co-ordinating doctor is not required to be in the room at the actual moment of administration, fluctuating capacity could raise vital issues of consent.
Amendment 483A probes whether the panels have sufficient powers to gather all necessary evidence to decide on eligibility. It ensures that a panel can refer the patient for any further assessments that it considers necessary. Can the noble and learned Lord who is the sponsor explain why the panel does not sit within the usual tribunal structures, as doing so would give it more expansive powers to request further evidence where necessary? For example, the tribunal procedure rules for the First-tier Tribunal, in the Health, Education and Social Care Chamber, empowers the tribunal without restriction to give direction to matters such as,
“issues on which it requires evidence or submissions … the nature of the evidence or submissions it requires … whether the parties are permitted or required to provide expert evidence, and if so whether the parties must jointly appoint a single expert to provide such evidence … and the time at which any evidence or submissions are to be provided”.
It would be helpful if the Minister could confirm whether the powers given to the panel in Clause 17(4)(d) and (e) are as extensive.
Finally, my noble friend’s connected Amendments 495B and 941A would require the panel to provide a report to the person containing recommendations to address any unmet social and palliative care needs, in addition to determining whether an eligibility certificate should be granted. More fundamentally, these amendments probe what the panel is intended to be. The Bill’s sponsors previously have tried to argue that the panel is akin to a multidisciplinary team. My understanding is that on this point they have been rebuffed. After the noble and learned Lord cited the Association for Palliative Medicine’s Dr Sarah Cox in his defence on 9 January, the APM responded in a letter that the Bill’s sponsor had misrepresented Dr Cox’s position, saying:
“This panel fails to replicate a true multidisciplinary model and essential protection”.
Further, it says that the Bill’s current provisions render
“the panel a mere administrative review, stripping it of the very nuance and human understanding that defines robust, compassionate decision-making at the end of life”.
My noble friend’s amendments are intended to help the noble and learned Lord by providing ways for his panel process to be strengthened so that it operates more like a multidisciplinary team. An important first step would be to expand the panel’s scope so that it includes explicitly the ability to provide assessments of or treatments for unmet health and social care needs. This would enable each panel member to assess, individually and then together, the holistic needs of the patient and contextualise their decision around assisted suicide. My noble friend’s Amendments 495B and 941A build on this and a recommendation of the Royal College of Psychiatrists that the panel should be able to recommend interventions addressing potential drivers of a desire to hasten death, such as depression, social isolation or difficult physical symptoms.
It should be remembered that the Bill does not guarantee that the person will ever have met a psychiatrist or social worker before this stage in the process. We cannot deny the patient the benefit of their holistic experience and expertise in favour of a rubber stamp. My noble friend would also tie her amendments to the sponsor’s commitment to consider a requirement for the co-ordinating and independent doctors, although not the panel, to ask why a person has requested assisted suicide. Ultimately, what is the point of exploring motivation unless the intent is to establish whether drivers can be addressed in another way?
To conclude, the heart of the problem is that, due to the way it was added to the Bill in the other place, the panel process suffers from a fundamental identity crisis. Are the members trying to be a kind of tribunal, or are they designed to be a kind of multidisciplinary team? It would be helpful if the sponsor could enlighten us, because currently they fall short of both.
Baroness Keeley (Lab)
My Lords, I will speak briefly in support of my Amendment 483, which would ensure simply that in-person hearings remain the default when assessing applications under the Bill, with remote evidence via video or audio link used only where extraordinary circumstances make an in-person hearing wholly impracticable.
Given the gravity of the decisions involved, it is essential that scrutiny is of the highest standard. An in-person hearing allows the panel to observe the applicant fully, including their demeanour and interactions, and to look for any signs of pressure. This cannot be reliably assessed over a video link, and certainly not over the phone. Indeed, California’s assisted dying law requires assessments of coercion or undue influence to take place outside the presence of any other person, a safeguard that remote evidence cannot guarantee.
The Civil Justice Council’s review of remote hearings during the Covid pandemic found that the majority of respondents considered remote hearings to be worse than in-person hearings overall and less effective in facilitating participation, a critical component of procedural justice. Many respondents found remote hearings tiring, difficult to follow and more prone to misunderstanding. The Civil Justice Council found that nearly 13% of participants in remote hearings experienced significant technical difficulties, and in a process as sensitive as this one, even a small risk of technical or technological failure is a risk too far. There is also a contradiction in the Bill as drafted. It requires live evidence while simultaneously allowing pre-recorded testimony, so that a short, pre-recorded voice note could in theory constitute the entirety of an applicant’s oral evidence, with no opportunity for questioning from the panel, and that cannot be an adequate safeguard.
Lord Moylan (Con)
My Lords, I have two amendments in this group, Amendments 926 and 929, which are related to each other. They are probing amendments related to Schedule 2 and the operation of the panel. It is something that has been niggling away at me and worrying me. I am perfectly prepared, of course, to be told by the noble and learned Lord that there is nothing for me to worry my little head about but let me raise the question none the less.
Schedule 2 makes provision for appointments to the assisted dying review panel. As I understand it— I am sure I will be corrected if I am wrong—the commissioner can create a list of people who are eligible to serve on panels. That is, if one likes, the mega panel at the top. These people can be appointed for a term of five years and reappointed for a term of a further five years. From that large group of people, the commissioner then, in each individual case, will draw and appoint the members of a panel—the three members with the specific skills that we have been discussing—and the decision of those panels needs to be unanimous. Even an abstention would count as a negative vote, so to speak. That is how I understand paragraph 5 of Schedule 2.
That is the background. To work properly, the panel members need to be independent of each other and reach their own view. It seems quite possible that they will have different personal thresholds as to what they regard as the appropriate level of evidence required to persuade them to say yes. In that light, it is more than possible that some of them might turn out to be slightly awkward, in the sense that they tend to say no rather more often than they say yes—which is fatal to the process because one no and the whole thing is over. You have been through the preliminary discussion and the two doctors, and at the panel you are being knocked back because of one rather awkward person. There will be pressure on the system as a whole, essentially, to eliminate those people from it—those who are difficult and who generally are more likely to say no than otherwise.
Amendment 926 says that, when deciding whether or not to reappoint somebody for a further five-year term, no account should be taken of what might be called for this purpose their voting record in panels. Similarly, Amendment 929 would mean the decision of whom to appoint to a panel cannot be taken on the basis of their past voting record. Voting record may be an inappropriate phrase, but I think noble Lords understand exactly what I mean.
As has been mentioned earlier in the course of the day, the background to this is of course the Abortion Act. The principal safeguard in the Abortion Act is that two doctors separately must agree there is a threat to the woman’s health. When the Act was introduced, that was quite possibly a genuine safeguard, and there may have been occasions when doctors said they did not consider there was a threat to the woman’s health that justified an abortion, but it has become entirely routine. There would probably be a flag run up a pole at DHSC headquarters if a doctor were to say no on an abortion application nowadays.
Therefore, I have put these amendments down to prevent something like that from happening—to prevent the panels from becoming routine—and to ensure those people who have the higher threshold of evidence, the more cautious approach, the slightly more sceptical attitude, are not eliminated from the panels, either through having their term not extended or through simply not being appointed when each opportunity comes up. There may be better ways of dealing with the concern I have expressed than the ways contained in my specific amendments. They are, as I say, probing, and I am open to those improvements. But we have to ensure that this does not go the way of the Abortion Act, and that the panels are robust and say no when it is appropriate to say no, which might be quite often. That is what I would like to hear the noble and learned Lord comment on when the time comes.
Baroness Berridge (Con)
My Lords, I will speak to Amendment 462A in my name, which outlines that, before approving any application, the panel must be satisfied that the person requesting assistance has had the requisite assistance from the local authority in relation to the delivery of statutory services.
The amendment deals with the problem caused by the basic principles of the Bill, which is based on a very narrow concept of procedural autonomy. If it is only this that matters, then for the panel, as long as they can tick the boxes saying there is no coercion or pressure, and that the person has capacity et cetera, then the application is approved. It is approved under the current drafting of the Bill even if the panel believes and has evidence that the person is applying because, for instance, their housing is inadequate, the care package fell apart, they are actually grieving for other relatives or they are poor.
This amendment would mean that, before any such approval is made by the panel, it must be satisfied that the local authority has received a referral to look at the statutory provision of services for the person. In relation to this, I am grateful that the noble and learned Lord enjoyed his meeting with Professor Alex Ruck Keene, because he has put this a number of times in written and oral evidence about the concept of the panel and its powers, and it is worth quoting:
“You have to think … carefully about what purpose any … of this oversight is actually serving societally, if the oversight panel, whether that be a judge or a panel, cannot decline to approve an application if it considers that the reason the individual is seeking assistance in dying is because of service provision failures by the statutory bodies responsible for meeting their health and social care needs”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee, 28/1/25; col. 96.]
I know the noble and learned Lord has answered many questions and commented about the access to this service for the poor. This is a different question. I am not saying that poor people should not be able to apply. I distinguish that from a situation where the panel has concluded on the evidence that, although the person satisfies all the tests under the Act, the evidence is that they are before the panel because they are poor. There are many instances of this from other jurisdictions, for instance, particularly in relation to homelessness. People have come forward for MAID in Canada because they are homeless, which is available because it is not just for terminal illness in Canada.
In relation to the amendment, it may be that the drafting needs to be different; it might be that this needs to be done not just before the provision but can be twin tracked, so that you approve the application but at the same time make sure the local authority deals with the provision of services. I hope the noble and learned Lord will take seriously this additional power for the panel to ensure that people are there for the reason that they are exercising their autonomy in relation to the Act and not pressured because of lack of statutory services.
Lord Falconer of Thoroton (Lab)
The noble Baroness refers to it as an additional power but, as I understand the amendment, it says that this is an additional requirement for a certificate of eligibility.
Baroness Berridge (Con)
I am grateful to the noble and learned Lord. I accept that drafting changes might be needed between now—
Lord Falconer of Thoroton (Lab)
The noble Baroness says, “drafting changes”, but there is a fundamental difference between saying that this is an additional condition that the panel has to be satisfied of and giving it a power. I understand the noble Baroness’s amendment to be saying that an additional requirement needs to be satisfied.
Baroness Berridge (Con)
When I mention drafting changes, I mean in relation to the timing of this. As drafted, it would need to be done before the application is granted, and it may be that the requirement to go to the local authority could be at the same time as having approved it, not before. But, yes, this would be an additional requirement on the panel.
I hope the noble and learned Lord the sponsor or the noble Baroness, Lady Finlay, can help with my second point on the principle of the Bill. The noble Baroness, Lady Hayter, referred to the situation based on autonomy: the individual wants to do this and does not want to tell relatives. If we are strict purists about that—we had evidence on this at the Select Committee—then with this Bill there could be a situation where the first time anyone hears about the death is when the medical examiner telephones a relative.
I have tabled amendments in a different group on a requirement to nominate next of kin who are over the age of 18. I think it would be useful for the Committee to know what the situation is if someone acts completely autonomously like this and the body is there. Does the noble and learned Lord the sponsor need to bolt on a provision so that there is a public health burial? That is the continuation of the logic of this that you can do this alone, with no one in your life knowing about it. Therefore, to exercise that autonomy fully, there would need to be a public health burial, with everything done before anyone in the family knows. That is a conceptual difference. The noble and learned Lord and I spoke about this in a meeting in relation to what the law is, and it would be good for him to clarify the situation. Can the medical examiner not call anybody and go forward with a public health burial?
Baroness Hayter of Kentish Town (Lab)
Does the noble Baroness understand that, quite often, people die and their family does not know about it?
Baroness Berridge (Con)
Absolutely, and therefore the medical examiner’s evidence is that, when they have the body in that circumstance, they are under an obligation, we think, to locate and find a relative. Sadly, this happens more frequently than we would like to think, and the local authority powers to perform a public health burial then become apparent. So, yes, there are these situations.
It is important to clarify this in relation to this Bill, because we have this evidence from the medical examiner that the first the family might know is when they are called by the medical examiner. We need to be clear about that and about the position of families. Is this personal autonomy—that is the conceptual point—so fully and properly enacted that there would be a public health burial, without any obligation to inform anybody that this is happening?
Baroness Lawlor (Con)
My Lords, I support Amendment 472, tabled by the noble Baroness, Lady Gray of Tottenham, to which I added my name, along with the noble Lord, Lord Goodman of Wycombe. I also support Amendment 941 from the noble Lord, Lord McColl of Dulwich, and I will just say a few words about that.
Amendment 941, to Schedule 2, on the assisted dying panel, would require the social worker to take account of financial dependence, potential financial pressure and potential coercion from someone benefiting financially from a person’s death. My noble friend Lord Deben referred to this apophthegm earlier, but I first heard it from the noble Lord, Lord Grabiner: “Where there is a will, there is a relative”. This is a very important amendment, and I hope the noble and learned Lord the sponsor will consider it seriously.
Amendment 472 from the noble Baroness, Lady Gray of Tottenham, would require that the panel must ask the person seeking an assisted death whether they have discussed the matter with their next of kin. We have been discussing this in different ways today. At the very least, this requirement would prompt reflection about those most affected by this action. It might prompt such a chat simply by virtue of asking.
Lord Falconer of Thoroton (Lab)
The noble Baroness, Lady Lawlor, will know that there are quite a lot of cases at the moment where the first that somebody hears of the suicide of someone they love is when they are told about their death. I have two examples in mind. One is Mr Paul Blomfield, who described his father hanging himself and not involving him because he feared that he might be investigated by the police. The other is the wife of Stuart Broad’s father, Chris Broad, who hoarded pills and, as a result of her not wishing to involve her husband, the first he heard of it was when an email came through from her. What does the noble Baroness say to those people under the current law?
Baroness Lawlor (Con)
We are proposing and debating a piece of legislation at this moment. We are concerned about the safeguards in the current proposed piece of legislation. The noble Baroness, Lady Gray of Tottenham, has proposed that the reviewing panel must raise with the person considering assisted suicide whether they have discussed it with their nearest and dearest. That is a different matter from what the noble and learned Lord has raised. We are discussing a piece of proposed legislation and I am discussing an amendment proposed by another noble Lord.
It is very important for those on whom we have depended and may still depend that we form a society and, as human beings, give support and love to one another—a mother or father who wishes only to support their child, perhaps terminally ill, to live their life as best they can; a daughter, son or sibling supporting their loved parents, sister or brother; or a spouse or best friend.
I do not agree with the premise of the Bill that we are autonomous human beings to dispose of ourselves just as we wish. Whatever freedom we have as human beings is rooted in a network of social relations and responsibilities, especially to our kith and kin. We therefore need to do whatever is possible to ensure that a person’s ultimate decision to end their own life is taken within a familial and social context. This amendment, which I support, promotes that end.
Baroness Berger (Lab)
My Lords, I will speak to my Amendments 466, 471 and 474, as well as to Amendments 472 and 485 in the name of my noble friend Lady Gray of Tottenham; I will make different points on those. These are all forms of amendments that were tabled but not debated in the other place. They all seek to strengthen the effectiveness of the voluntary assisted dying panels as a safeguard, because that is what we have been told they have been put forward to provide.
My first two amendments would mean that questioning both the co-ordinating or independent doctor and the person seeking an assisted death is mandatory and not at the panel’s discretion. It is extraordinary that, in light of all the evidence that we heard across the 13 panel sessions of the Select Committee, the Bill currently does not ensure that the panel asks questions of every person seeking an assisted death.
Noble Lords will be aware that, as we have heard, the panels were added to the Bill in the other place two-thirds of the way through Committee in order to replace the High Court, which we were originally told was part of a judge-led process. The panel process has never been piloted or consulted on, and it appears to have been based on the Spanish system—a system of guarantee and evaluation commissions—but of course the Spanish law is very different from the Bill that we are scrutinising, which we have been assured is narrower and safer. The Spanish system, which allows for both assisted dying and euthanasia, does not require a terminal illness from which a person is likely to die within six months, as the Bill that we are scrutinising does; it requires only—in translation—a serious and incurable illness or a serious chronic and impossible condition. The Spanish legislation provides for considerably wider categories. I am sure that those of us concerned about vulnerable people being made to feel that they are a burden are very glad that the sponsor has not proposed them here.
The requirement for a terminal illness with a six-month diagnosis is a meaningful safeguard only if it is properly tested. How can it be said that a panel has done its job if it has not asked a single question of the doctors? How can it establish that the person has not been pressured or coerced just by passively hearing their prepared statement, which may have been drafted under the eye of their abuser? In what way is any of this a suitable alternative for the rigour set out in the first iteration of the Bill, which included the High Court? That is why I believe that these amendments are necessary.
This concern was expressed very well to the Lords Select Committee by Dr Luke Geoghegan, who represents the British Association of Social Workers. He set out the following about how safeguarding usually works in this country and how it differs from the approach of the panels that is currently set out in the Bill:
“An allegation is made or a concern is raised and that concern is investigated, and then that allegation or concern is either upheld or it is not. The challenge for the panel”—
the voluntary assisted death panel—
“is that here this model is flipped. Can we be sure that this person is not affected by safeguarding or coercion issues? It is often impossible to prove a negative, but we can make reasonable assessments on the balance of probabilities”.
The real issue here is that the panel system means there is no other side seeking to show that the test for eligibility has not been met, and there is no cross-examining of the witnesses who say that it has. In the absence of such a legal process—usually the hallmark of our British system—having the panel at least ask some questions of every applicant for an assisted death is surely the absolute minimum that must happen if we are to have confidence in it as a safeguard.
Amendment 474 would make a more discretionary change. It would add a requirement to “consider hearing from” a person’s family and other treatment and care providers. I reiterate that, in the amendment as set out, it is not mandatory. In advance of explaining the amendment, I will provide a counterview to some of the things that we have heard so far. We have heard the discussion about family members in the context of agency. I will talk about it in the context of the variety of autonomy and the context of establishing coercion.
Family members and those who have provided care for the person are likely to be privy to information that has a significant bearing on the panel’s deliberations and decision. Perhaps a son or daughter knows that someone new has recently entered the life of their vulnerable parent, has slowly taken control of their finances and has encouraged them to cut contact with others.
I set out this point reminded by the evidence that we heard from Age UK and the existence of different types of abuse, but particularly romance fraud. In the Select Committee, we heard that Age UK had been contacted
“by families who say, ‘Hang on, I’m really worried that there is this person in my mother’s or father’s life and I’m not sure what their intentions are’”.
The evidence talked about
“the moral hazard for people who stand to gain from older people after their death”.
An example of this could be a carer who knows that the person has struggled with suicidal feelings long before their illness worsened or knows the reason behind the source of their despair. Perhaps, while quietly attending to the needs of the patients they are responsible for, a carer has overheard a friend or family member suggest to the patient that it really would be easier all round if they were to end things sooner rather than later with the help of trusted professionals. I know that we would like to think that this does not happen, but I have spoken already in this Chamber about the first-hand experience of hearing how that is unfortunately the case in some instances.
I am aware that there is a power in the Bill to hear from “any other person”, but this is left so open as to add little in the way of assistance or direction to the panel. My amendment, therefore, responds to the evidence we heard from the professional bodies and provides an explicit steer while still allowing for the panel to conclude that additional evidence is not likely to be helpful or that the process of seeking it would be too onerous.
I also support Amendments 472 and 485 in the name of my noble friend Lady Gray, who unfortunately is unable to attend today. Amendment 472 would require the panel to ask the person whether they have discussed their requests for an assisted death with their closest relatives and to discuss the reasons if they have not. Amendment 485 would provide that this requirement would not apply in the exceptional circumstances where a panel chooses not to hear from the person. These amendments, like mine, seek to highlight the vital insight that family members may have into the person’s wishes or eligibility. If the panel is able to place the person’s request for an assisted death in the context of their relationships, they are more likely to be able both to understand an undeclared motivation behind the request and to detect any coercion or undue influence.
As the Bill has progressed, it has frequently been noted that doctors rarely make serious decisions on their own. The sponsor, my noble and learned friend Lord Falconer, has acknowledged this, which is why the panel itself is so often referred to as multidisciplinary. Here, I note the expertise of the noble Baronesses, Lady Finlay and Lady Cass, and others, who have rightly pointed out that the medical assessments themselves should also be multidisciplinary. However, it is also true, as we heard at the Lord’s Select Committee, that patients rarely make decisions on their own. We heard from the Royal College of Psychiatrists that there is very pure personal autonomy, where somebody makes a decision uninfluenced by anybody else, but that does not reflect the way that people usually make decisions, which is as part of their relationships with others, and that is very normal.
Professor Charles Foster told us that, in the real world,
“decisions about how we exercise our autonomy are made in the context of our relationality”.
We discuss with our relatives what should happen. If someone chooses not to tell their immediate relatives or loved ones about such a momentous decision as ending their life prematurely, that is noteworthy. There may be good reasons for it, as set out by my noble friend Lady Hayter, but that should be for the panel to establish. These amendments do not offend against autonomy and they would not oblige a person to tell their family or friends anything, but they would enhance the information available to the panel and move it further towards being an effective safeguard against coercion and undue influence or an otherwise unwanted assisted death.
A secondary point to these amendments is to make it at least a little less likely that families will have to go through the trauma of finding out about the death after it has happened. Our Select Committee was told by the Royal College of Pathologists that in cases where death is unexpected, families often find out about the death of a loved one when they receive a call from the medical examiner. If passed, the Bill is likely to increase the number of cases where that happens and will put a great strain not only on families themselves but on the professionals who find themselves in that position. I am conscious of time, but it is worth reflecting on, and I ask noble Lords to look at the comments from the Royal College of Pathologists, as that was explained to us.
Amendments 472 and 485 seek to minimise these impacts as far as possible. They would not create an obligation on the person to involve their next of kin, but they might encourage them to have that conversation if they feel able to do so. Ultimately, the more information that is available to the panel about a patient’s circumstances and relationships, the more confident we can be in the panel’s decisions and the regime it would create.
Baroness Fox of Buckley (Non-Afl)
My Lords, some intricate and sophisticated schemes have been put forward concerning the nature of the panels. In listening to the noble Lord, Lord Sandhurst, I thought how fascinating it was to hear about the ways in which the Law Society has approached this issue. We have heard a lot of fine speeches challenging everything from the size of the panel to whether it should have investigatory, prosecutorial and even quasi-judicial powers. I suddenly felt like I was in an episode of “CSI” or something; I thought, “They’re only panels”.
At this stage, things are getting so demanding and confusing—and, potentially, overlayered and bureaucratic—that I think we should take a step back. I am very sympathetic to why this has happened. It is driven by a desire for safeguarding and for these panels to have teeth. It is created by the loose wording in the Bill—in my opinion, it is poorly drafted—that means people are asking, “What will these panels be able to do? What should they be able to do? Can we join the dots?”
I want to go back and, more simplistically, if you like, take at face value the panels as they are described by the sponsors of the Bill. They will have three members: a social worker, a legal person, and a psychiatrist or somebody from the psychiatric profession. What will we expect of them? I ask this because just announcing that is not sufficient. Let me say why. I have put my name to Amendment 925A in the name of the noble Lord, Lord Murray of Blidworth, who explained very well what he is trying to do with his amendments. What is needed is a process for how you end up on a panel if you are one of those three people the sponsors want.
Amendment 925A would set up an independent appointments process. It talks about appropriate tests, interviewing people, vetting and so on. That is important, because the one thing we know from all the speeches we have heard is that these panels are going to be important and will make important decisions. You cannot put an ad in the paper saying, “Are you a social worker? Call in”. We have to think about what will be required of them. The noble Lord, Lord Murray, has done us a real service by straightforwardly saying that we need to have a system and that this is necessary, albeit by no means sufficient, to counter any risk of these panels being inadequately staffed by the wrong or inappropriate people and to fulfil the aspirations of the Bill’s sponsors. It is absolutely necessary to counter any notion that the panel members will be just yes-men and yes-women who have turned up. In my opinion, we need to know that they are of the right calibre.
The role of panels is not just crucial in terms of safeguarding for those who go down the assisted dying route. We have heard some important speeches about safeguarding, but we must also consider that a proper process is required to protect panel members themselves from what is potentially likely: the blame game.
I have some qualms about the privacy issue that the noble Lord, Lord Jackson of Peterborough, raised. He conceded that there might be some problems with this. It was another testy exchange with the noble Baroness, Lady Hayter, but we have to consider both sides of that exchange as being valid, because the panels are going to have to take on some difficult issues.
I am sure that the noble and learned Lord, Lord Falconer, will remember what I thought was a tricky exchange on “Newsnight” last year, when he was asked about a situation where a 21 year-old could successfully request an assisted death and their parents would find out about it only after they were dead. Reference has made to the fact that that would happen with suicide, but in this instance, the difference is that heartbroken, grieving mums, dads or other family members would find out not only that their 21 year-old child was dead, but that they had been to a panel of social workers and so on, it had been okayed, and they had not known about it. It is only fair to note that they would want to know exactly on what basis that panel made the decision. They would ask what the qualifications of the people on that panel were. It has to be said that that 21 year-old could have a learning disability, Down syndrome or a previous history of mental illness and had tried to commit suicide in the past. Any people with a similar illness could actually be granted the right to an assisted death by that panel.
You can imagine the multiple scenarios. I thought of that, because I remember in Committee in the other place, Naz Shah, the Labour MP, made an excellent thought-provoking contribution when she said that when such cases happen, the public, including family members of the person who has died, will rightly demand answers and so will the media. They will want to know who the panel members were and why they made the judgment that they did.
There is a lot at stake here. I do not necessarily agree with the view of the noble Lord, Lord Jackson, that everything should be in the public domain, but there will be demands to know what is going on. Is it being hidden away?
The way that Amendment 925A sets up a process will, in the end, protect people, because otherwise, panel members are likely to be on the receiving end of some intrusion whether they like it or not. We have to make sure that the right people are on the panel.
I also just wanted to raise the staffing of these panels. This feels very banal after some of the things people have been talking about, but are there enough social workers and psychiatrists around to go on to the panels? This seems to be a rather practical problem before we get anywhere. At the moment, in terms of professional panellists, there is one psychiatrist on each panel, yet the most recent workforce data shows that one in six consultant psychiatric posts is unfilled. So, that shortfall must cause problems. The Royal College of Psychiatrists has said:
“As things currently stand, mental health services simply do not have the resource required to meet a new range of demands”.
I am just worried that, if the commission struggles to find enough psychiatrists, the temptation will be to appoint anyone available and willing who can be ticked-boxed as a mental health professional. That is a bit nerve-wracking, which is why interviews, qualifications and so on are important.
The same resource deficit challenges exist in terms of legal members who, after all, we are told will replace judges in a way, according to the noble and learned Lord, Lord Falconer. But who are these legal members? Where will they be found, given the immense financial and resource constraints on the justice system that are so bad, we are told, that the Government are embarking on judicial vandalism, in my opinion, in sacrificing jury trials? If there is a problem of scarcity, is the recruitment of real legal expertise to the panel guaranteed?
Finally, on the third panel members, the social workers, given what the British Association of Social Workers have said about the sector being at capacity—and it has noted that the panel proposals are not resource-light—noble Lords can see that there might be a problem. The shortages of all three panel member professionals are not evenly distributed throughout the country, so what does the noble and learned Lord, Lord Falconer, think about a postcode lottery? What if you cannot find the legal expertise, social worker and psychiatrist in one part of the country where there is a great need? Has he consulted, as the sponsor of the Bill, with the likes of the Royal College of Psychiatrists and the British Association of Social Workers about workforce pressures?
My final question is for the Minister, with regard to the panels. What assessment have the Government made of their workability, given the problems raised by the professional bodies of social workers and psychiatrists? If there are not enough people available, surely the panels will not be workable and therefore this part of the Bill needs to be sorted out; otherwise, there is no point passing it as it stands, because it will never happen.
Baroness Hayman (CB)
My Lords, I am pleased to follow the noble Baroness, Lady Fox of Buckley, not least because I often do not agree with her but I did agree with several of the things she has just said. She started off by talking about the dangers of intricacy in what we lay down in the Bill—about how the panels should conduct themselves. The more I listened to the speeches and the more I read the amendments, the more worried I was about not only the overly bureaucratic nature of this, and the over-engineering of the processes the noble Baroness referred to, but the invasion of privacy on many levels.
We all recognise the role of the panels in safeguarding against abuse, but there will be a range of people. I was thinking of how I would feel on one of the panels, being interrogated along the lines of some of these amendments. The amendment in the name of the noble Baroness, Lady Gray of Tottenham, says that I must be asked whether I have discussed the request with my next of kin and any other persons I am close to. Where someone has not done so, they will be asked to discuss their reasons for not doing so. That is way too intrusive and well beyond a way of finding out whether I have been coerced in this situation. It goes much too far, is over-engineered and, in the words we started off with today, is not kind to the majority of those who will be seeking help in circumstances they find intolerable. They find the way in which they are dying intolerable; it is not that they want to end their life, but it is because they are dying. I find that the whole tenor of this conversation does not think about the people who are going to be involved in, and subject to, this process. We have to think about them as well, and balance it with the sort of protections that are needed to make sure that bad things do not happen within these processes.
I was also surprised at the level of involvement in the amendment about children and information in the name of the noble Baroness, Lady Finlay—and she and I agree on many things. This is desperately personal stuff within families. The idea that not only should you be consulted on why you have not spoken to a child about this, but that you should have to nominate someone else to report your death, and then you should make sure that there are bereavement services, opens up a whole area. Just like palliative care, bereavement services are very patchy—all over the place—and vary tremendously. Why should this category of parental loss be subject to the obligation of the state to provide bereavement services, as against every other sort of parental loss?
Baroness Finlay of Llandaff (CB)
My Lords, perhaps I might come in at this point. First, factually, I point out that the amendment that I have tabled does not state “bereavement services”; it states “support”. That is completely different.
Baroness Hayman (CB)
Will the noble Baroness accept that we would have to define “support” and how it is different from “bereavement services”? Then we will have more of these complications.
Baroness Finlay of Llandaff (CB)
Perhaps the noble Baroness might be relieved to note that I do not intend to move my amendment. I would like to speak to it now, but I will not be moving it.
Routinely, when you go into hospital, you are asked who your next of kin is. That is a routine question and it is entered in your medical record. That person has no legal status in terms of making medical decisions, although they may be consulted if a best-interest decision has to be taken. However, if you die, that will be the person the ward will phone to say that you are dead and your body is going to be moved to the mortuary, and that is the contact number that will go to the medical examiner to phone you later, which I think is the point the noble Baroness, Lady Berridge, was trying to extract.
It was helpful that the noble and learned Lord, Lord Falconer, described the shock of discovery of a death that you did not know about. That shock has been described by relatives who suddenly discovered that their parent had died by some form of assisted suicide or euthanasia when they had not known about it beforehand. That is documented.
It is also worth remembering that there is no evidence that suicide rates fall when these types of assisted death services come into play, but there is evidence that when people get the care they need, suicidality—that is, thinking about ending your life early—falls. So people need to have care.
I shall speak to my amendments now.
Lord Falconer of Thoroton (Lab)
Is the noble Baroness speaking to Amendment 459?
Baroness Finlay of Llandaff (CB)
I have already spoken to Amendment 459 and am finishing off speaking to it.
I will move on to Amendments 475 and 939 in Schedule 2. There is concern over the operation of the panels and safeguarding responsibilities, just in terms of the information that comes forward. Someone with relevant information would be allowed to come forward to the panel with appropriate evidence and be afforded whistleblower protection, in the type of situation described by the noble Baroness, Lady Berger, where there is a new person on the scene who others may feel has malintent, for one reason or another.
In the Bill’s current model, medical assessments that have previously gone to the panel will not be monitored contemporaneously. They could be poorly reported, they will not be reviewed and this could hide errors, unconscious bias and discrimination. The role of the panel will be to issue a certificate. In Amendment 493, I have suggested that the certificate should have validity for six months and, in the event that the person has a longer prognosis—we have many examples of that—it is renewable rather than having to start the process again because they have outlived their prognosis.
However, the appeal mechanism to a panel seems to be one-sided. The person can appeal against a refusal to give them a certificate, but there does not seem to be a mechanism for appeal. My Amendment 499 seeks to allow information to be brought to the panel that it may not have known about when it gave a certificate. This may relate to domestic abuse that had been hidden, to coercion or pressure, to any information that the diagnosis may have been wrong, to recent emotional or psychological trauma, or to depression or metabolic disturbance which might have impaired capacity.
Amendment 932 is a very practical one concerning the provision and distribution of panels around England and Wales. It has not been made clear how many panels there would be or that there needs to be fair distribution. I have suggested a minimum of three per region in England and a minimum of three in Wales. For the geography, topography and population, I think three would work for Wales. However, areas of England with high population density, or very large rural areas, would probably need more to enable the panel to visit the patient face to face for an assessment. It is completely inappropriate to expect a patient to go to see a panel when they are already ill or to rely on remote consultation rather than having the ability for face-to-face discussion. Those face-to-face discussions must be subject to the confidentiality that you would expect in any medical consultation. I hope that we will not be suggesting that this would be publicly available.
I suggest that, as has been said, these panels came in two-thirds of the way through and a panel can take testimony from others. However, in terms of getting information about the person, as the Minister of State for Courts and Legal Services said in Committee on this Bill:
“It is not a court or a tribunal … They can make the request, but they cannot compel someone to attend”.—[Official Report, Commons, Terminally Ill Adults (End of Life) Bill Committee, 12/3/25; col. 1102.]
Baroness Grey-Thompson (CB)
My Lords, I want to pick up on a couple of points that have been debated this afternoon, and those raised by the noble Lord, Weir, on the impact on disabled people. I seem to have completely failed in all the debates to get across the fear that disabled people feel with this Bill being debated.
Jennyfer Hatch in Canada had Ehlers-Danlos syndrome, experienced organ failure and was approved for MAID. It made me think of the letter that the Minister, the noble Baroness, Lady Merron, wrote to the noble Lord, Lord Moylan, this week, about the combination of illnesses that would qualify a person for this service. That is why disabled people are so worried. The combination of their disability and other conditions would make them eligible, even though we have been told that there is nothing to worry about. Can the Minister confirm what I understand the noble Baroness, Lady Merron, said when she wrote to us: that a combination of impairments would enable somebody to enter?
I strongly support the amendment from the noble Baroness, Lady Keeley. That is really important because in another case from Oregon, Joan Lucas, who had ALS, was approved for this service; her children filled out the form. There was no question about it; they just took it and she was approved, which is quite worrying.
I thought the debate on somebody dying by suicide was really interesting, and I am going to use “assisted dying” in this context. One of the reasons we are told we cannot use “dying by suicide” is because dying by suicide and this process are completely different. I am not really sure that we can have it both ways. We need to give a little more thought to that.
I get quite upset when we are constantly told that people are dying anyway. I apologise to the noble Baroness, Lady Hayter, but we have to find a better form of words. People may be dying, but the process and the experience they have as they go through that might vary considerably. Sometimes the language that we use in the Chamber can be quite dismissive of the amendments that we are trying to bring to make the Bill safer. We still never seem to hear the word “safe”, we just hear “workable” all the time.
My amendment in this group, Amendment 924, is about protecting older people and being able to make sure that any abuse or risk of coercion can be assessed. It is really about how the panels gather this information. It has already been mentioned that the British Association of Social Workers has said that the safeguarding is not enough. Hourglass has said that one in five of over-65s has experienced abuse, and on 15 June last year, which was World Elder Abuse Awareness Day, there were calls from numerous organisations to do more. The British Psychological Society has said that elder abuse is a “hidden epidemic”, and the scope is huge: it can be physical, emotional, financial or sexual; there is also neglect and self-neglect.
While the Domestic Abuse Act 2021 gives a framework, challenges persist of social isolation, caregiver abuse, power dynamics and, again, financial abuse. The role of professionals and how they report back on this is really important. I absolutely understand what my noble friend Lady Hayman is saying about not making the system overly complicated, but we have to find a holistic way of supporting people.
SafeLives has said that older people experience abuse before seeking help for twice as long as those who are under 61. Last year Age UK reported the fact that older people are overlooked by policymakers, service providers and programmes that are designed to support victims and survivors. Until 2021, people over 75 were not even asked about their experience of domestic abuse, so the lack of data means that there is an assumption about who is being abused. The ONS introduced new survey questions, which render comparison nearly impossible. Of course, the perpetrator of the abuse could be an adult child. What we found out is that women are at higher risk from their partners and men are at higher risk from adult children. Many organisations have talked about the need for professional support, which is really important.
When I am sitting in the Chamber and we talk about people becoming older at the age of 61, I wonder what the average age of the House of Lords is. I believe it is still 71, and everyone is incredibly active, but this is not the real world—on so many levels, it is not.
Baroness Grey-Thompson (CB)
Sorry, I did not mean to be funny.
We are using old data or data that is incomplete. The data I found, which is from 2017-18, showed that 139,500 women and 74,300 men aged 60 to 74 experienced domestic abuse. Those are huge numbers. Hourglass estimates that 2.7 million older people experience abuse, and in Australia, the Royal Commission into Aged Care Quality and Safety said that 39.2% of older people experience neglect and emotional and physical abuse.
I am very sorry that my noble friend Lady Hollins is unable to be here today, because her experience of assessing patients—the thousands of patients she has worked with—would be quite important. We were told by the honourable Member for Spen Valley, Ms Leadbeater, that there would be detailed conversations, so not to worry. But I question what those detailed conversations will look like. My husband and I have very different views on what a detailed conversation is.
To cover the issue of panels briefly, I have no experience of such panels; the only experience of panels that I have is for Olympic and Paralympic selection, which is very different. But you are talking about someone’s life in sport, and potentially their career can be ended by a decision—although I am in no way conflating those two things. But in that process an athlete who has not been selected is able to appeal only the process and not the decision. That is a really important thing, because most athletes never understand what they are trying to appeal to get to go to a major Games. So it needs to be very clearly understood what that appeal process should look like.
Lord Harper (Con)
I shall speak briefly to the three amendments that I have tabled in this group, to start off with. First, Amendment 472A would slightly tighten up the requirement for the panel to speak to the person’s proxy, when they have a proxy. Currently, as the Bill is drafted, they may speak to the person’s proxy, but I think that they should speak to the person’s proxy. There are no criteria set out about how they make that distinction. Given that the person’s proxy will have signed the declarations that kick off this process, they should speak to them. I do not anticipate it being a very long conversation, but it is essential that they do so.
Amendments 495D and 496D reference the appeal mechanism in Clause 18 and set out a time limit in line with normal tribunal and administrative appeals—so somebody has to appeal against the panel’s notification of the refusal of the grant of certificate within 10 calendar days. I shall not labour the point, but it is just sensible to have a time limit to make sure that there is a clear process.
I had intended to limit my remarks to that, but I have done the dangerous thing of actually listening to the debate, and I wanted to reference my noble friend Lord Jackson of Peterborough’s amendment. It came out in the contributions of the noble Baronesses, Lady Fox and Lady Hayter—a perfectly reasonable difference about exactly where we need to have transparency and balances against privacy. The noble Baroness, Lady Hayter, is perfectly at liberty to disagree with the noble Lord, Lord Jackson, and she obviously does, but I was surprised that she appeared to take against him for the temerity of even tabling his amendment. She said she was shocked. The presumption in the Bill as drafted, as far as I read it, is that in Schedule 2 the panels are to determine referrals in public; that is their default procedure. I give way to the noble Baroness.
Baroness Hayter of Kentish Town (Lab)
That is very helpful, because I can say what I said to my noble friend in private. Had we been doing this Bill at the sort of speed I hoped we would, I would have tabled an amendment that it should be in private. My personal view is that it should be. Because of the way things are happening—I will say no more—I have not tabled those sorts of amendments.
Lord Harper (Con)
That is very helpful. It enables me to make this point, because this is where we have a disagreement. It gives the sponsor of the Bill the opportunity to set out why the Bill is drafted as it is. I will set out why I think my noble friend’s amendment is broadly right, but perhaps there is a comparison with what we already do in similar cases. That may give the noble Lord, Lord Carlile, the opportunity—he may not wish to say so—for another “told you so” moment, as it is a judicial comparison.
The presumption in the Bill is that panels will do the referrals in public. There is a “subject to” on that: the chair of the panel can decide to do it in private if they feel that is appropriate. I accept that there is a balance to strike because, for obvious reasons, these panels are making decisions about personal, private matters. It is also right that there is some transparency. My noble friend Lord Jackson’s amendment would give quite a big window, 28 days, to publish the notice of the panel meeting. It would also include the name of the person.
The comparison I looked at, which I thought was a reasonable one, was what the Court of Protection does. It makes decision about sensitive financial and welfare matters. It used to be the case that the Court of Protection’s presumption was to sit in private and not hear cases in public. That has changed over time. The presumption now is that cases are heard in public. Again, my understanding is that there is the ability for the judge presiding on those cases to decide for them to be in private if that is felt necessary. Even when they are in private, I understand, members of the public can make applications to go and listen to those cases. I think that is all right and proper. That appears, I presume, to be where—the noble and learned Lord, Lord Falconer, is nodding.
Lord Falconer of Thoroton (Lab)
This is an important issue. Let me say what I think the purpose of this is, so that it can be properly debated. The norm for the panel—the noble Lord, Lord Harper, is right—is to sit in public, but it is such a thing that it should be determined by the patient. If the patient says that he or she wants it in private, and they very regularly will, the chair can say, “Okay, it’s in private”. The expectation is that it would normally be in private if the person asks. However, there is still a discretion for the chair. It is not like the Court of Protection where the judge is making a decision in a much wider public interest. The reason it is drafted like this is that there needs to be some transparency but, if the person wants it in private, they should generally be entitled to that because it is so personal.
Lord Harper (Con)
That is helpful in one sense because it is helpful to have fleshed out the noble and learned Lord’s intention. It is not helpful in the sense that he has made the Bill less attractive to me than I thought it was. I thought the presumption was more that it would be in public.
Lord Falconer of Thoroton (Lab)
It is very important that the noble Lord knows.
Lord Harper (Con)
I do. The reason why I partly agree with my noble friend Lord Jackson is that I had a look at what the Court of Protection does in terms of publicity—the bit that the noble Baroness, Lady Hayter, objected to. It publishes hearings in advance—not 28 days—but it does not publish the full name of the individual. It publishes initials and what the case is about: the broad category of the decision. That strikes me as quite a good balance, which provides transparency but maybe avoids people coming to “watch a spectacle”, to quote the concern of the noble Baroness, Lady Hayter.
However, there is some necessity for it to be in public. The reason for that is also set out in the Bill, which says the panels
“must hear from, and may question, the co-ordinating doctor … must (subject to subsection (6)) hear from … the person to whom the referral relates”.
At this point, I agree with the noble Baroness, Lady Berger. That should absolutely be a must; there should not be an exception. If it is the case, as I understand from the appearance of the noble Lord with me on a media programme, that the exception is designed for cases where the person’s medical situation is very severe, they should not necessarily have to come to the panel, but at least one member of the panel should absolutely still have to go and talk to them. It really should not be okay for the panel to authorise somebody to have an assisted suicide without ever having spoken to the person concerned.
Baroness Hayter of Kentish Town (Lab)
I am sorry that we are doing this, but the person will be at home, very often, and bedridden. Are we actually expecting a panel to go to their home, into their bedroom, and do this there? Again, this is not the sort of world that I know from some of the people who I see living in surroundings where it would be quite difficult even to put a spare chair in their bedroom—they could be on oxygen, or whatever—for someone to see them there.
Lord Harper (Con)
These are difficult issues, but the panel is being asked to authorise their death, so this is a serious issue. I accept that this is uncomfortable, and I am not suggesting the entire panel would rock up at their home, but at least one member of the panel ought to have to talk to them. The idea that the panel would authorise somebody to have an assisted death, never having spoken to them, is frankly appalling.
I shall just finish, because I want to stick to time—although I am conscious that the noble and learned Lord nicked a bit of it to explain to the Committee. I shall finish by saying that the amendments that have been put down are very helpful, because we have fleshed out this very sensible issue of how much of this should take place in public.
The other reason for it being in public is because, otherwise, there are two groups of people the panel is asked to talk to. It may hear from and question any other person and may ask any person appearing to have relevant knowledge. The problem is that, if these hearings are done in private and no one knows they are happening, I do not know how the panel is supposed to know who any of these people are; these people are not going to be able to make themselves known to the panel. So there is a clear argument about where you draw the line and there is clearly a balance to strike between openness, transparency and privacy, but it seems to me that this is a good debate for the Committee, and I want to hear where the Bill’s proposer thinks that balance should be struck. We have heard a little bit about that, and we can hear a little more later.
Captain of the Honourable Corps of Gentlemen-at-Arms and Chief Whip (Lord Kennedy of Southwark) (Lab Co-op)
I am conscious of the time; it is now nearly quarter to six. So, it quite clear that this debate is not going to finish tonight and we are going to have to adjourn mid-group. This is absolutely fine, but we will take the intervention from the noble Lord, Lord Jackson, and maybe one other contribution. Then we will probably have to adjourn mid-group.
Lord Jackson of Peterborough (Con)
I thank the Chief Whip for his helpful admonition. I will just say very briefly that the amendment is very much in keeping with the spirit of what both Governments have sought in looking, for instance, at bringing forward pilot schemes in the Court of Protection, where there has been de facto assisted death by the withdrawal of medical treatment by clinicians, particularly for children, where hitherto no details were released of the clinicians, trusts, lawyers or anyone. The Government thought that to be unsatisfactory and inimical to open justice.
On that basis, the Government brought forward more openness and transparency, and my amendment merely continues that. Finally, I will say that it includes only the name of the person involved: secondary legislation by way of regulations would be in place to enable further details to be revealed, if necessary. If I am honest, I cannot really understand the slightly over-the-top reaction from the noble Baroness, Lady Hayter, because this is a sensible and proportionate amendment.
Baroness Coffey (Con)
My Lords, I have tabled a handful of amendments, a couple to Clause 17 and then some more to Schedule 2. It is perfectly acceptable for the noble Baroness, Lady Hayter of Kentish Town, to be appalled by some of these amendments. That is okay: that is her perception; that is her reality. It may not be what my noble friend intended, but we are dealing with a serious situation.
Noble Lords have talked about finding somebody dead. Of course, it would be devastating if the family around them had not known that somebody was thinking that the only way life could get better was if they did not have a life at all. That is the reason for some of the aspects about bereavement services and connection to next of kin, so that there is that contact to see whether somebody who is in a very dark place is terminally ill or doctors have suggested that they have less than six months to live. An interesting area that we are discussing is about the tipping point for somebody to choose to accelerate that, to take that poison, and for the state to help them do it without being in touch with the next of kin. I know there are other groups where we get into that in more detail, but this is why it has become so sensitive.
I held my mother’s hand as she died. She had less than a month to live, and we looked after her. My dad died while I was on a plane, and I found out when I landed at Heathrow Airport. That is why I cannot watch the end of “Love Actually” because it is everybody meeting their families. It is the most I have ever cried in my life, and I have to switch off the film before the end. These are very significant moments.
I am conscious of what noble Lords have said about whether this should be in public. I think on balance it should be in public because we are having this effectively quasi-judicial process, which is at the end of a line, to some extent, making sure that somebody is doing this of their own volition and is not being coerced. That is why all the different safeguards are suggested.
I have tabled Amendment 480A—I appreciate that the noble and learned Lord will, perhaps next time, speak to his Amendment 480—which refers to how the panel will operate. I believe that an audio link is not enough in terms of discussions with the co-ordinating doctor, the person doing it and, indeed, the person’s proxy. In person or by live video would be good. I have tabled Amendment 483C to amend subsection (5), which currently provides:
“Where the panel considers it appropriate for medical reasons, it may make provision for the use of pre-recorded audio or video material for the purposes of subsection (4)”.
I can completely understand that, but I can understand it only for the person applying. I do not understand why the co-ordinating doctor would not be available to go in person or on a videolink in order to have that interaction with the panel. I have chosen to put that amendment in at that point.
The panel is an important part and that is why it is vital to get to the bottom of Schedule 2. Another noble friend asked me to ask the sponsoring Member whether there would be immunity from suit for the panel members, but I want to get into a few amendments that I have tabled. I am trying to work out how this is all going to work. I see this panel very rarely meeting in person, and I can see it evolving quite quickly. It will all be done by Zoom or Teams, and that concerns me. If the intention is that this is going to be available effectively probably 365 days a year, I am trying to get a sense of how this is going to work.
I appreciate that the Government will not want to answer that; they say they have not done the thinking, but somebody has done the thinking, because this is what the legislation is about. We now have, in parts of Schedule 2, panel members even starting to ask whether they can have pension contributions. Who is going to be doing these roles? Is it going to become a full-time job? It is one of the reasons I put a suggestion—it is just a number—of a maximum of 25 years for panels. I do not know if that is a panel per day, whether multiple people will be in a panel, or whether it is a one-off panel. I think the Law Society, in its written evidence to the Commons, suggested that it should take a day per panel, per application. The Government have costed in an estimate, in their equality impact assessment, of two hours. I am trying to get a sense of who is going to be doing this.
I have not tabled an amendment about this, but will there be a register about who is there? I do not want this to become a thing for, dare I say, vigilantes to try to intimidate people, but there is a question about how we do some of the vetting—I will not repeat what my noble friend said earlier. I am also genuinely concerned that we are going to give this an international element. I do not mean the person applying, necessarily—we covered that some time ago—but the people on the panel. That is why I have put things like a judge in England and Wales. You can be a King’s Counsel and be in Canada or Australia, where there are all these other things, and in law at the moment that does not stop it being the case. People might think I am overimagining things, but I am trying to be precise about what the law allows and trying to understand how it might work. If I am wrong, fine: I am happy for it to be said in Committee that that is not going to apply, but I want it to be said in Committee, so that if anything does evolve like that, we can start the judicial reviews to stop that practice.
I have suggested in Amendment 921ZB that it should not be King’s Counsel. That was inspired by the noble Lord, Lord Wolfson of Tredegar, in his Second Reading speech. It made me think a little more. I am not trying to do this so that hardly anyone can do this role. What I am trying to ask is why we talk about high judicial office being needed. A pretty high-level judge or a KC, without being too rude to KCs, is not exactly the same comparison. There are plenty of other judges—deputy court judges or district judges—who are all regularly used to having this arbitration or tribunal approach, so I do not understand why we have limited it to being that or a KC.
As for Amendment 932A, I do not see why the lawyer is the person who has to chair it. This happens quite a lot in decision-making bodies in government: things just evolve. The reason why the local resilience forum in Buckinghamshire is actually across Bucks, Oxon and Berks, it so happens, is by default, not in law but in practice. The chief constable is always Gold Command—it is always the police that run it—therefore, what has happened over time and practice is that the LRF is across those three counties automatically. These sorts of things start to become habits; they start to become the way it is done and it cannot be changed, so I just want to be clear. I do not in any way understand why the lawyer should be making the decision as the chair of the panel. I do not understand why it should be the legal person who gets to determine whether the sitting should be in private. I think that is an unnecessary addition.
I would prefer the panel to be in public, but I completely understand the sensitivity, so the impact of my Amendment 933A is designed to be that they can sit in private but only for the part that directly involves the applicant. The reason for that is sensitivity to people at a very difficult time in their lives, but I do not understand why that should also apply to all the other people who have been involved at some point. Why should their interactions with the panel need to be in private? When people go behind closed doors, we start to get a lack of understanding of what is being said and of patterns. That is why, later in the Bill, I will mention other protections that I want to see. I am conscious or concerned about being a panel member effectively becoming a full-time job. That would be a bad step in this regard.
There are many other amendments that I would love to talk to, but I am conscious of the time. This is a really important moment in considering how this final safeguard will work in practice. Is it what we were expecting when the Bill arrived in this House?
Lord Kennedy of Southwark (Lab Co-op)
My Lords, the Clerk of the Parliaments has confirmed to me that the clerks have recorded the names of every noble Lord who was here at the start of this debate. They will be circulated to the Chief Whips, including me, and the Convenor of the Cross Benches next week.