Terminally Ill Adults (End of Life) Bill
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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.
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.
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.
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.
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.