Lords Chamber

Friday 14th November 2025

(began 3 hours, 30 minutes ago)

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10:07
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10:16
Baroness Coffey Portrait Baroness Coffey (Conservative)
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My Lords, Group one is perhaps not the ordinary place to start when considering the issue of Wales, and it's one of the reasons I've actually tabled 40 amendments specific to reference to Wales in this bill for a reason, but in fact it's aspects of it we will get into in more detail. I'm grateful to the noble Baroness, Lady Smith and the noble Baroness, the noble Lord, Lord Thomas, for regrouping parts of theirs, because I think it's important that we have a considered debate about how potentially this bill could apply in Wales.

And I'm also conscious, though, the House will want to get on to the key principles which we will cover in groups coming up, the reason for raising this, this bill started as a judge led process with quite a focus on, in effect, decriminalising parts of the suicide act. And I'm in no doubt that that is not that is a reserved competence. So having the one judicial system, I completely accept that that's not what I'm seeking to get into, but I am what has happened in the Commons, and even more so now in the Lordships' House in terms of tabling amendments, basically flips this bill into being an NHS provided assisted dying, assisted suicide, assisted help.

I've forgotten the varieties which are now being proposed on what it's going to be called to be delivered and without doubt, without doubt, health is devolved to the Welsh Government and therefore the Welsh Senate. Now, there's been a number of debates in the Welsh Senate and consistently the Welsh Senate has said it does not want assisted suicide to go ahead, particularly in Wales, using well under their devolved elements. And that vote has been taken actually fairly recently. And as a consequence, I'm concerned that aspects of this bill will be in effect, potentially breaking the Sewel convention, although I accept that the I think the Welsh Government is now onto its second legislative consent motion and will continue to have more.

But when I have asked the government questions, when I've asked the government questions, I've done it, tried to do it through freedom of information requests. This is just trying to understand what concerns the government has had about this bill, why it's needed. I think it's 11.7 FTE civil servants full time equivalent are now working just under Department of Health, and I think over three in the Ministry of Justice to work through and understand what are the issues that has made the government decide that's not workable, that's not practical, that's let's think about the legal element.

I have been blocked at pretty much every turn by saying on FOI, elements of this is not. It's going to take too long to answer you and indeed an answer I got recently. I'm still waiting for an answer from the government, from the Department of Health, but another one just saying. Well, the Minister mentioned it basically in Committee stage. In the other place, he can in effect look it up yourself. And I'm not sure that's the attitude that's going to help us get through this detailed understanding of where we are.

But returning to Wales in particular, the government has been having weekly meetings with Welsh Government officials, weekly technical meetings. It's not been possible to get the information about what are the what's the discussion and recognising the government. Both governments are supposed to be neutral on this. This is not a case of government policy formation, which is protecting the Freedom of Information Act. But nor do I feel it's in the spirit of considering the most important bill during this entire parliamentary session.

Indeed, through this entire Parliament. So the other aspect that I'm concerned about is that we, in terms of what is happening in the Welsh Senate, is that the government's, the Welsh Government, there's clearly a difference of view, not only between the Welsh and the Welsh Government, but it's at the moment information is not being released. So my opening of this is not to get into the whole Wales debate, but to simply get us into an understanding and to ask the Ministers, ideally, I appreciate the sponsor of the House may have the answers, but let's be candid, it's civil servants who have been doing all the technical work and sponsors doing the more general policy ideation.

Or at least that's what Ministers told the select committee. Now, I know the select committee only had a limited time. I did try and see if we could get discussion about Wales during the Select committee, but unfortunately that wasn't possible. So that's why I think it needs some careful consideration. So I'm not going to delay particularly debating group one. I could do lots of references to the reports. They are online on the Welsh Senate Parliament. But there is a huge difference.

Huge difference in what the Welsh Parliament believes the Welsh Senate is should be devolved and what needs consent motion and what so far the requests from the sponsor, I believe, of this bill. I'm still awaiting an answer from the government about who's actually have. Has the government actually requested the legislative consent motion? I have not yet had a reply. So there is many, many more clauses that the Welsh Senate believes should be there. And what I'm looking for is a straightforward response from both Ministers on what it is, which clauses they believe are not devolved and why.

Ideally, I'd like to hear that on the floor of the House. But if that's not, information is not available today, I'd be grateful if that could be responded to in a letter, actually to be laid in the library so that everybody has a proper understanding of what this bill, what is the responsibility of this House in the. And we'll get on to the broader issues, of course, but also what is the responsibility of another Parliament. And I think we need to be absolutely transparent on what that means, because we should not be assuming that we just have the opportunity to ride roughshod over what other devolved administrations and

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parliaments believe. I beg to move. Amendment proposed clause one,
10:22
Lord Weir of Ballyholme Portrait Lord Weir of Ballyholme (Democratic Unionist Party)
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Amendment proposed clause one, page one. Line three. Leave out all Wales.

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Wales. My Lords, I rise to support the amendment. Standing in the name of Baroness Coffey. Some people may Baroness Coffey. Some people may detect from my accent that while I do hail from the great city of Bangor, it is not the great city of Bangor in North Wales, but the great city of Bangor in Northern Ireland. But I have particular empathy with the amendments that have been put forward by Baroness Coffey. From my experience as a previously as a Minister in devolved administration, because I think that the clarity that is being sought by Baroness Coffey does go to the heart of the relationship between devolution and the and Westminster, and in particular, I think it is particularly relevance for this Bill.

Generally speaking, as a Minister in devolved institution, you will be faced with one of three categories of legislation. Firstly, there will be reserved matters which are entirely within the purview of Westminster. They are national issues which I think everyone would accept. Secondly, will be a range of issues which, while they are not strictly reserved, are of so obvious applicability across the United Kingdom that a legislative consent motion is one that should be applied. And while I do not see Lord Foulkes in this place, I would say that even on occasions the SNP government in Scotland has been prepared to sign up to legislative consent motions.

But the third category, which is the bulk of legislation, is situations which should be decided locally, where a devolved government can take a devolved parliament, can take the choice of whether they follow what is there at Westminster and what is happening in England, or may take a different path, may seek to either virtually replicate, we seek to amend or indeed going tangentially, very different direction. And that is, I think, at the heart of democratic accountability of devolution. I believe this is one of those issues that should be decided in Wales.

This is an issue which should very clearly fall into category three. But we all know that we have a very unusual constitutional setup for the United Kingdom, where devolution to Wales, Scotland and Northern Ireland in each case is on a slightly different basis. And I think that can produce some unusual aspects. And I think that what we have today is a certain level of anomaly, because this effectively legislation as regards Wales, falls into what might be described as a fourth hybrid category.

As Baroness Coffey highlighted, the distinction is between the aspects of dealing with criminal justice and criminal responsibility, and those that deal with health and social policy, with the former being reserved and the latter being devolved. It is very clear that the heart of this bill is that health and social policy making very major decisions which impact on that. Yet we are left with the situation that if this goes through unaltered for Wales, it will mean that the criminal responsibility will be lifted, but there will be no regulations coming from this House or Commission as to how this will actually be brought about.

It is the equivalent of this House saying that we are going to bring in new road safety measures, those measures that will not apply to Wales. But if you are caught speeding on the motorway, there can be no criminal sanction against you. I think that what we have arrived at potentially for Wales is the worst of all worlds. Now, it seems to me that what we need to do is take a step back. We need to ensure that that the wishes of the Welsh people as exercised in and they may change over time, are respected, and that it should be the case that the way that we should be operating, rather than effectively impose something which then has to be more or less corrected in Wales by way of changes to their health and social policy.

It should be a situation that the issue of assisted dying should be decided in the Senate at Wales, and then if they decide to make those changes, that this House should then reflect, and this Parliament should reflect those changes by way of changes to the criminal justice system, which I think would be something that would be relatively easy to do. Can I say, at least in the absence of that, I think that the importance of these amendments as outlined by Baroness Coffey, if we cannot get things at least definitively the right way round, let us at least get that level of clarity over what aspects of this applies to Wales.

And rather than a potential wall of obfuscation which Baroness Coffey has met, I think this is an ideal opportunity for the government and or at least the and also the sponsors, to highlight where exactly the demarcation lines are, which I think will also be a very helpful device as we move through the rest of this bill.
10:27
Lord Blencathra Portrait Lord Blencathra (Conservative)
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I support my noble friend Baroness Coffey and her amendments in this group. As I looked at the title of the bill, terminally ill, and then saw clause after clause talking about the patient and the doctor's involvement, I was clear that this was a medical bill. Then we had the Secretary of State for health saying that he was in charge of it, and the Department of Health and Social Services would second about 30 or so officials to help rewrite the bill, taking ownership of it in a kind of way.

Then I asked myself, why on earth are we legislating for Wales when health is a devolved matter in Wales and the Senate is in charge of health matters? And this is my this is where my Lord Jay gets really Monty Python esque. Because whilst this is a medical bill in England, it is a criminal bill in Wales and criminal matters are not devolved to Wales. How on earth can the same bill be a health bill in one country of the Union and the same bill, a criminal bill in another on the 23rd of October last year, Senate members, including First Minister Eluned Morgan and Health Secretary Jeremy Miles, voted against a motion calling for a new law to allow assisted dying in Wales.

In England, Miles had earlier warned of huge ramifications for Wales if the law changed. In total, 19 Senate members voted in favour of the motion, with 26 against and nine abstentions. However, the Senate does not have the power to change the law on assisted dying in Wales, so the vote was symbolic. The Senate does not have the powers to over powers to legalise assisted dying, but Health Secretary Jeremy Miles indicated that it is likely future legislation will require another vote to give Parliament's consent.

The Welsh NHS, which is almost totally devolved and overseen by Cardiff politicians, would be responsible for implementing the law. However, the Senate, I understand, can still vote on whether to implement the legislation as parts of the bill touch on devolved areas like the Welsh Government would need to pass specific regulations and gain an affirmative vote from the Senate before the Welsh NHS could provide the service. And I am not a great fan of devolved administrations, but they do exist and they've got a genuine job to do in Wales.

This would mean that their NHS and their doctors would have to implement all the provisions of an English law. They had no power to change. That does not seem right to me. If the Senate in Wales can be trusted to run the NHS and all medical facilities in Wales, then it should be trusted to make its own terminally ill end of life Bill. Also next year there will be Senate elections and on current polling there may be a large majority of played and reformed members elected.

It cannot be right that the inherent a bill relating to the deaths of about 35,000 people in Wales each year, and they have no say over how their constituents die. Of course, the Senate could refuse to give consent for legislation, but I suspect there will be threatened and blackmailed into doing so. They will be told it's the English Bill or nothing. Wales has no power to do its own law, so the Senate had better approve it or else. But the Senate could do their own law.

All we have to do is grant them the constitutional power to do so. My Lords, if you look at clause 42 of the Bill, it says that Welsh Ministers make regulations about voluntary assisted dying services in Wales. Subsection three says that the Secretary of State may make regulations about the provision of voluntary dying services in Wales also, and subsection four says that these regulations could be made by an Act of Parliament and they would not, which would not be within the legislative competence of the Senate if it were contained in an act of the Senate.

So, my Lords, because the Senate does not have the legislative competence to make some of the necessary law, this clause in this bill is giving the government the freedom to let the Senate make those laws, which it does not at the moment have the legislative authority to do so. So I suggest there is the answer to the problem. If the government can use this bill to allocate new legislative powers to the Senate to make some laws relating to this bill, then it can go further and grant a power for the Senate to draft and pass its own law on terminally ill patients, as the Delegated Powers Committee have pointed out, there are already extensive Henry VII powers in this bill, and it should be an easy matter to draft a new clause which removes all references to Wales in this bill, but grants a power to the Senate to do their own bill.

Wales want control of their own death regime and cannot do it, since this bill is nonsensically regarded as a criminal law bill in Wales. My Lords, we have the power to give the Senate the power it needs to determine their own laws on this matter. on this matter.
10:32
Lord Harper Portrait Lord Harper (Conservative)
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My Lords, I want to support my noble friend Baroness Coffey amendments. I want to raise two issues, really. One is on the the principle of how we're dealing with devolution. But I also want to bring to the House what I hope is some valuable experience from my time in the House of Commons about the detail of how the services are delivered on the ground, particularly for those people that live close to the border. And given these issues are life and death issues, the detail of how these services are delivered are very important.

And one lesson from the way the 1999 devolution settlement was delivered was there was no thinking done and literally no thinking done about some of the complexity of the cross-border issues. And it took the best part of a decade of hard campaigning work to get this right. And in the interim, many of my former constituents, sadly, some of them didn't get the life saving medical treatment that they deserved as residents in England. So this is incredibly important. It's an issue. I suspect it will only be known by those of us that have had some responsibility for this.

I'm sure the Minister will be very well aware of it. There will be, and if she isn't, she will be able to go and ask her officials to dig out all of the background and history for the cross-border delivery of healthcare and the protocols that are now in place, because they will be very relevant to how these services are delivered. In the first part of my remarks, though, I just want to touch on particularly the aspect that my noble friend Lord McLean raised, and it's partly about my fundamental view about, I don't think delivering this legislative outcome through a private member's bill is very satisfactory.

And I think this issue is one of the reasons why not. We've got a very uncomfortable situation that we're accepting that this is devolved in Scotland, and the Scottish Parliament is busy off legislating to deliver assisted suicide in Scotland according to how they want to deliver it. And although the delivery of healthcare now, I, I personally don't believe that assisted suicide is a healthcare intervention actually. But it is clear from what I understand. Health Ministers have said that they do think that this will be delivered by the National Health Service.

So if it's going to be delivered by the National Health Service, logically, as my noble friend said, you would expect it to be done in accordance with the devolution framework. But as my my noble friend said, because what is actually happening here is the, the it's the suicide act that is being amended to put in place the ability for people to help someone take their own life and not be caught by the Suicide Act if that makes it effectively a criminal justice matter, which isn't devolved, which is why we're having to legislate for England and Wales.

And I don't think that makes any sense. And it would have been much better if the UK government had had some sensible conversations at the beginning of this process with the Welsh Government, and have come to an agreement about how this was going to be dealt with. And either, as my noble friend said, devolve the power to alter the criminal law in Wales and allow a fully devolved solution, or the Welsh Government and the Welsh Senate agree that we could legislate at Westminster for both the principle, but also the operational delivery mechanisms on an agreed basis.

And I think we've we've ended up with a very uncomfortable halfway house, which I don't think is going to be at all satisfactory, where we're going to be making decisions here for a service that's being delivered in Wales, where we're doing it against or not, in line with the wishes of those elected by the people of Wales. And that's a but we're not really having that proper, sensible conversation. Let me turn now to the the operational issues. Now, I've looked at the bill, and because the bill says almost nothing about how this is going to be delivered in practice, let me just flag up a couple of issues.

The bill applies to people ordinarily resident in England and Wales and registered with a GP practice. Now, one of the complexities is if you live in an isle. For those that don't know, my former constituency of the forest of Dean, if you live in the forest of Dean, there are parts of the forest of Dean where you live in England, so you'll be covered by the law in England and the NHS in England. But you will actually be registered either with a GP practice that's physically located in Wales, that is governed by Welsh laws or is physically in England, but is part of a wider practice in Wales.

Now why does that matter? It matters because you'll get your primary care delivered according to the rules of that practice. So some of my former constituents have primary care delivered according to Welsh rules, even though they're resident in England, and people will be familiar. There are differences there about whether you pay for prescriptions, for example. But the really important issue and the bill is silent is when you receive secondary care. So when you're referred to hospital for treatment, it was the case before we put in place the protocols that now exist that my former constituents in England are entitled to certain, according to the law, to get services in England were actually being referred to secondary care in Wales, where waiting lists were longer, where they didn't have the same provisions about choice, and therefore those residents of England were not getting the services to which they are entitled.

And what the bill, I think is silent about is it doesn't distinguish between whether you're resident in England and Wales. So the concern is this if the health service in England delivers the service in a particular way, but Welsh Ministers decide to deliver the service in a different way, with different checks and balances and with different professionals delivering that service. It's not clear in the bill whether if you live in England, but you're registered with a GP practice in Wales, whether you would be entitled to the English provisions or the Welsh ones, and given this is about life and death situations that matters, and I, for one, am not content to leave it to secondary legislation.

It should be spelt out on the face of the Bill about the rights that you have as a resident of England to the services you get and then the rights, if you live in Wales and the Welsh ones, should be according to the provisions of the Senate. And this in this manner I see Ministers are, you know, chatting to each other. This this matters. This will be if this isn't if this isn't got if this isn't got right, if this isn't got right, there will be people in England facing life or death situations who don't get the health professionals involved in this.

There's been a lot of talk about the necessary provision of psychiatric services. For example, there'll be people potentially coming under the ambit of this bill that gets social care. Now social care is devolved. So the level of social care you get and the rules about it and the entitlements to it are different. In England and Wales, the provision of secondary care. So psychiatrists for example, is devolved. So that won't be the same in England and Wales. Getting this right matters. The legislation as currently drafted says nothing about delivering services accurately to people based on their residence.

At the moment we've lumped. So whether someone's ordinarily resident in England and Wales together, I don't think that's satisfactory. You should get the services in England that this House and the other place decide are appropriate. And English Ministers, as in Ministers in the UK government responsible for the health service in England, decide. And if you live in Wales, you should get the services that health Ministers in Wales decide to get. And we need to make that very clear in the legislation.

So I think my noble friend's amendments raised some really important issues that go to the heart of this legislation. They haven't been thought through by the promoter and sponsor of the bill. I hope that having raised them today, I hope Ministers will start thinking about them and will come back to the House with amendments themselves. Otherwise amendments will be put down, I suspect, by myself and others to correct this at Report stage, because it's a massive gap and it will be an issue for residents in England and Wales, particularly those close to the border.

And that is a quarter of the Welsh population, for example, and it will be raised by members of Parliament up and down the border. And it's my experience as a former

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member of Parliament is it's better to get these things right. Yeah.

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Yeah. Yeah, yeah. And I'm and I'm and I'm going to finish very quickly if I'm going to finish very quickly if you don't interrupt me it's it's better when the time limit is very better when the time limit is very clear and I'm going to stick to it. But I'm finishing my point. And I was coming to the end of my point. was coming to the end of my point. And it wasn't necessary that the government Chief Whip made it clear these are incredibly important these are incredibly important issues, and we're going to debate them with courtesy and respect.

I'm going to treat I'm going to treat going to treat I'm going to treat people that I don't agree with on this issue with courtesy, respect. And when I haven't exceeded the And when I haven't exceeded the time limit, I don't expect to be yelled at. So let me just finish my point and then I will sit down. So point and then I will sit down. So I'm just my experience is and I'm only going to go over the time limit because I was interrupted. My experience as a constituency and former constituency MP is it's better to get these things right in advance when you draft the legislation and not spend years
10:42
Lord Markham Portrait Lord Markham (Conservative)
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trying to fix it afterwards. I'm not an expert in the

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I'm not an expert in the delegated powers, and so I must admit to a bit of confusion. So I'm hoping that the noble Baroness, the Minister or the sponsor of the bill, maybe both. Lord Falconer can help clear this up. I think my understanding is that what the bill is trying to do is to enable the Welsh Senedd to make a choice. And if the amendments go through as drafted, they would deny that choice because it would rule out Welsh people living in Wales from being able to choose whether they had assisted dying or not, whereas what the bill I think is trying to do, and I'm hoping that can be clarified in the response, is saying that it will.

This legislation will enable the Welsh Senate to decide how they want to implement the bill or not. And when they do that, they can take into account the points that Lord Harper just made in terms of how the two services could sit alongside each other. But all we would be doing right now by passing this amendment would be denying the people in Wales that choice, which I think cuts right across the principles that Lord Reed was saying, was that this decision should be taken in Wales.

This amendment would mean that that decision is taken here to deny the people of Wales the choice. My Lords.

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I'd firstly like to. Welcome the noble Baroness, Lady Coffey, for introducing this debate
10:44
Baroness Smith of Llanfaes Portrait Baroness Smith of Llanfaes (Plaid Cymru)
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Coffey, for introducing this debate and raising very important questions in regards to devolution. And I look forward to the response to the Minister at the end of this debate. I'd firstly like to address the specific amendments and then respond to some of the comments already raised in this debate. These amendments, along with a number of amendments in future groups, remove Wales from this bill. And ultimately I'm concerned that this deals the ability of people of Wales to exercise their choice in how they spend the end of their life.

And, as mentioned by the previous speaker, this could create a two tiered system where people in England can decide, while people in Wales are not granted that choice. By removing Wales from this bill, we leave people in Wales in limbo. And this is not the case. The case in Scotland where Scotland decides for Scotland and not being part of this legislation, nor having the powers to legislate on this important matter. This would be irresponsible of us. And while criminal law remains reserved, health is not.

And if this bill shall pass, this will have serious consequences on a devolved matter in Wales. So this is the situation we found ourselves in. And in order to address this matter, I have tabled amendments that will be debated in the future group that could resolve this very issue. And as I urged in Second Reading, we must reflect carefully not only on the moral weight of the question before us, but also on the constitutional responsibility that we bear.

We must respect and protect the role of devolved parliaments in matters that are clearly within their responsibility. And this will come up in a future debate in terms of how other noble Lords have mentioned giving the Senate the complete right to be able to legislate on this area. And we must not deny the people this important choice just because of their postcode. And now I turn to some of the comments already raised in this debate. Just to add further to the questions at the end to to the Minister, in light of the LCMS, in the Senate, the legislation, Justice and Constitution Committee has made a report just after the Second Reading of this House.

And in that report, I would like to ask that directly. The Minister in that report, it notes that there isn't an LCM attached to some areas of this Bill, and the Welsh Government hasn't given a reason to the Senate as to why. They have just noted that it would waive legal professional privilege. And so Senedd members are concerned as to why an LCM can't be attached to some areas of this bill specifically. So if the Minister at the end of this debate could respond to that, I'd be grateful.

And in light of some of the comments raised in terms of the vote in the Senedd, I would also like to remind this House that there is a Senate election next year, and therefore that it is most likely that the Welsh Government that would be implementing such a bill would be new. And we already know that at least 56% of the members of Senedd after May will be brand new members of Senedd. So I think that is an important point to consider for this House not to take the previous vote as the the say, of the Senate, but actually that we should ensure that the Senate has a proper say and is able to legislate for the people of Wales on the NHS in Wales area.

in Wales area.
10:48
Lord Thomas of Cwmgiedd Portrait Lord Thomas of Cwmgiedd (Crossbench)
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I shall be brief. I wish to comment on.

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Me that. What the people, as Lord Markham has said, this is a decision for has said, this is a decision for the people of Wales, not for the people of England, which. Dominates this.

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this. place. And here. The problem that

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And here. The problem that arises arises because of. The. Complexity of. The devolution arrangements for

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The devolution arrangements for Wales. And we can spend. Quite a lot of. Time, which I'm sure no one

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Time, which I'm sure no one wants to spend going through it and trying to understand why this problem has arisen. But essentially problem has arisen. But essentially it's arisen. Senate.

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Senate. To do anything is determined by the. Criminal law. That's the way in which the legislation has been crafted. That's not the case in Scotland. They have the freedom Scotland. They have the freedom that's denied to Wales and denied to Wales because of the way the devolution arrangements work. It devolution arrangements work. It cannot be right and it cannot be fair for this position to remain. fair for this position to remain. And so I do extend. Lord Markham has put his finger on what ought to has put his finger on what ought to be the solution, but we can't adopt what has been suggested by the Baroness Baroness Coffey.

Because if we did that, because of the way the constitutional arrangements are, the Senate would have no power to do anything. So the solution that has been put forward by deleting Wales from the bill is a non-starter. We have to do something, and it's particularly important because, as has been said, the although this is, on any view, partly a great moral issue and partly an issue about the NHS, it's only an incidental effects. Is it a criminal law issue? It's it.

The settlement makes it a criminal law issue. We ought to allow the moral issue and the issue in relation to the NHS to be determined in Wales, because if the Bill is passed in its current form and the Welsh Government decides they don't want to implement it, the only people who will be able to obtain assisted dying in Wales are people who are prepared to pay for it, and that cannot conceivably, on any view, be right. What we have, what the noble Baroness Baroness Smith of Llanfaes and I have done, is to put down an amendment to try and resolve this.

We've had it regrouped because this is inherently and I don't think any of you have had much experience of reading the Government of Wales Act. The only experience you ought to have of doing that is if you suffer from insomnia. And I think, therefore, what we ought to do in the in the coming period is to settle down with the sponsors of the Bill and with the government to try and work out a just solution to this problem. Otherwise, I regret to say the debate on the way in which we solve these problems on the floor of the House will be time consuming, and it is not really the best way of dealing with such an important issue that can be solved technically, but which I am sure everyone would agree with.

Lord Markham really is a decision for the people of Wales and not in effect for the people of England who dominate this legislature. Wales should not be regarded as inferior to Scotland. Yeah, well inferior to Scotland. Yeah, well said by Lord. Seems to me as an Englishwoman, bearing in mind this Englishwoman, bearing in mind this is a private member's bill, that whatever efforts.
10:51
10:52
10:53
Lord Gove Portrait Lord Gove (Conservative)
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My Lords, I would like to rise to support Baroness Coffey in raising this question. I think it is a moot point and genuinely moot point whether or not Baroness Coffey's suggestion is the right way of addressing this issue. But she is absolutely right to raise the whole question of the fitness for purpose of this bill. Given the nature of our devolution settlement. Now, I speak with a modicum of experience. For just over four years, I was the conservative government's Minister for Intergovernmental Relations, responsible for seeking to make devolution settlement work at a time when we had obviously a party of one colour in government in Westminster and parties of very different complexions in Belfast, Cardiff and in Edinburgh prior to that, both as Secretary of State for justice and Lord Chancellor, and also as Secretary of State for environment, Food and Rural Affairs.

I had to navigate the thickets of our devolution settlement and it requires care to make it work. And in order to do so, we have to take account of conventions, and we also have to take account of legislative competences, and we have to take account of precedents, and we have to take account, as my noble friend Lord Harper also pointed out, of the interwoven nature of the lives of communities that live on our borders. And it is absolutely right that we should do so both as a revising chamber and as a revising chamber.

Considering legislation of such moment. As everyone has pointed out during the passage of this bill, strong feelings are engaged on every side. And if we are thinking about fundamentally changing the responsibility of the state and our NHS when it comes to the balance between alleviating pain, prolonging life and, in certain circumstances, ending life, then we must proceed with care. And it was the explicit wish of many in the House of Commons, including at Committee stage, that this bill takes seriously the operation of the legislation.

So it is neither finicky, an abdication of responsibility or something to be criticised for in raising these specific and precise questions. It is our role, of course, many of us recognise, whatever our feelings on this bill, that the House of Commons clearly gave its express wish, that those who are living with a condition that means that their life will soon end in any circumstances, should be able to choose the timing and manner of their death. And I respect that clearly expressed wish.

Some of us may take a different view about that imperative sent to us from the House of Commons as a matter of first principle. But all of us have a responsibility to look at how the legislation operates, because we are not in the business of simply recognising and respecting a sentiment, no matter how sincere we are in the business of introducing legislation that must work and be made to work, and therefore it is our responsibility in the days ahead to look in detail.

And that is why I make no apology for specifically referring to the operation of the Sewel convention introduced by Lord Sewell of Lord Grimstone, a fellow Aberdonian and a former Labour Minister. It is a convention, and it governs broadly how we should legislate and how government should legislate with respect to devolved matters. And the Sewel convention makes clear that the government should not normally legislate in areas that are strictly devolved without the full consent of the legislative chamber, which is devolved to Holyrood, Scottish Parliament or the Northern Ireland Assembly.

Now, because it is a convention, of course it is the right of Westminster. Westminster is ultimately sovereign to legislate without that consent. But the broad convention on which the success of devolution sentiment rests is that that should only be exercised sparingly. And this is a point, of course, that was made very well and repeatedly by the promoter of the bill in this House himself, the noble Lord, Lord Falconer. He has on a variety of occasions in the past, when the government of which I was part, sought to legislate in a way that may have caused disquiet or opposition in devolved legislatures.

He has pointed out the importance of the Sewel convention, and he is not alone in doing so. The former Prime Minister, Gordon Brown, in a report commissioned by the current Prime Minister in the other place into the operation of the Sewel convention, recommended that the Sewel convention be made justiciable, that it should be the case, that it should move from a constitutional convention to actually part legislatively, part of our Constitution. Now, of course, the government have not yet taken that step, but it's the the stated intention and policy of the government to ensure that one cannot, or if that one did choose to legislate without the consent of a devolved legislature, that that would be capable of challenge in the courts, which it is not yet so in stressing the importance of making sure that we proceed with care, I am doing no more than expressing not just my experience of how important it is to respect the devolved sentiment, but also acknowledging the direction of travel that the government had set out with its belief in making the devolved settlements work better.

Now, the point has been made that our devolved settlement with regard to Wales is complex, and indeed it is, as a number have pointed out, crime and justice are not devolved. Health is. But again, even there in the area of crime and justice, there is no settled will. I was a participant and to the convention looking at the future of the Constitution with regard to Welsh devolution, led by the former Archbishop of Canterbury, Lord Williams of Oystermouth, Rowan Williams.

And in it he made the case and I believe it is a case that exercises the sympathy of Lord

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Thomas of Cwmgiedd. Oh, sorry. Thank you very much for giving

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Thank you very much for giving way. I just wanted to say that my understanding is that the Senate is undertaking its usual processes undertaking its usual processes around legislative consent, with reports from the health and the Justice Committee to be published Justice Committee to be published soon. A date for agreeing legislative consent has not been legislative consent has not been set, but it is likely to be either shortly before or immediately after Christmas. It normally would take place before Report stage, so that place before Report stage, so that amendments can be drafted in line with the feelings of the Senate at the time.

And I wonder whether we

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the time. And I wonder whether we need to look to the forward rather than historically. To the noble Lady for making

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To the noble Lady for making that point, because it it takes me to two of the points that I was about to make, about the two about to make, about the two committees in the Senate that have looked at this, the legislation and Justice Committee and the Health and Social Care Committee, and both and Social Care Committee, and both have explicitly raised concerns about this legislation. The point that I was making about criminal that I was making about criminal justice is that if there is a view, a broad view amongst what one might call progressive parties in Wales, call progressive parties in Wales, and certainly those parties which are likely to form a majority after the next Senate election, it is the crime and justice should be devolved.

Now. That is not the case at the moment. It should govern how we legislate in this House. But if we have to have regard to sentiment and we have to have regard, as I believe that we should to making the devolution settlement work, we should be aware that legislating without the consent of the the zenith in areas like crime and justice, is certainly putting an additional strain on the devolution settlement. Let me put it no more highly than that. And let me turn which the noble Lady's intervention gives me an opportunity to do to both of those committees.

Both of those committees have expressed specific concern that some of the powers that the the government seeks to exercise have not been justified, and the evidence that has been provided by the Welsh Government itself to the Senate on the exercise of those powers, have not been justified by the evidence so far. Thus provided. Now the Welsh Government have entirely understandably, is. Executives do said that they do not wish to share some of the legal advice that they have received with these committees because it is the right, quite rightly, of the executive, to have legal advice offered in private and for it to remain confidential.

But those committees are in a position where they say that for their purposes, for the purposes of due and appropriate deliberation, they have not been provided with the information necessary to justify support for this legislation. And more than that, some of these questions were addressed in committee in the other place, and an amendment was made to this legislation specifically restricting the exercise of some of the powers in this legislation, unless and until agreement had been given by the Welsh Government and Senedd Cymru.

That specific amendment, which won by one vote in committee and which secured the support of the Leader of Committee in the other place, was then gutted subsequently by the promoter of the Bill, the Member for Batley and Spen. Again, we may well take the view that Kim Leadbeater was correct in seeking to overturn what the committee had said. But what we cannot ignore is that two committees in the Senate and the parliamentary committee, which was scrutinising this bill in the other place, all said that the legislation, as currently put forward with respect to Wales, was unsatisfactory.

And these are not simply theoretical and abstract constitutional questions. They go to the heart of the effective delivery of this bill. I know that the devolved settlement with respect to the NHS in Wales is not simply an administrative or theological distinction. It matters. During the time of the Covid pandemic, when I was a Cabinet Office Minister, I was talking weekly, sometimes daily, to the Welsh First Minister, Mark Drakeford, about the way in which Wales entirely legitimately would choose to take a divergent path when it came to non-pharmaceutical interventions in order to deal with Covid 19, and coordinating those was a matter for all of us.

But it was the right of the Welsh Government, and it was in tune and in sympathy with the Welsh people that Mark Drakeford would put forward a very different approach to that which prevailed in other parts of the United Kingdom. And it has been clear, and the point has been made by members of the Senate, that if this legislation comes forward, then the impact on resourcing for NHS Wales, and in particular the impact on the provision of palliative care, will be adverse more than that.

And I do note this point, but I taking account of the intervention that was made earlier and I think it's critically important, critically important that we bear in mind these two other points. More than that, the point has been made by Welsh committee members that the provision of these services places a strain, in particular on mental health provision and particularly mental health provision for those who are Welsh speaking. The indigenous languages of this United Kingdom are a cause dear to my heart, and in government.

I did everything possible to support Gaelic and to support Welsh. Some might say that this is a recondite concern. I see it goes to the heart of respecting difference, devolution and the strength of our United Kingdom, and the fact that some might not consider it important in this chamber. I hope no one would express that view. But some might not only reinforces the vital importance of us considering how the devolution settlement works. So, as I said at the beginning of my remarks, I am not yet convinced that Baroness Coffey amendment is the right way to address this gap.

But gap there is. And unless the government comes forward with a clear proposal that addresses the concerns expressed by the First Minister of Wales, the concerns expressed by the zenith, the concerns expressed by both the Senate Select committees, the concerns expressed by the leader of the parliamentary committee. In the other place, unless those concerns are expressed, then we risk doing real damage to the devolution settlement. Real confidence in the capacity of Westminster to legislate in this area, and real injustice to those in Wales who deserve better palliative care and better mental health care than would be the case if this legislation were to pass.

As it stands.
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11:08
Lord Mackinlay of Richborough Portrait Lord Mackinlay of Richborough (Conservative)
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Can I rise to speak. In favour.

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And I think this has been a fascinating debate. About the issues that we have with the devolution. Settlements across.

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Settlements across. Our United. Kingdom. Because it's not only that issue across. The English that issue across. The English Welsh border, which have been so ably demonstrated and described by my noble friend Lord Harper, who my noble friend Lord Harper, who has experience in this matter from the other place. But we have other strange dynamics going on in this strange dynamics going on in this country between the English border over the border into Scotland, where things are very different. where things are very different.

You'll have other differences between England and Northern Ireland. We're not proposing to Ireland. We're not proposing to usurp the the settlements with Scotland. We're not proposing to Scotland. We're not proposing to usurp that with the settlement with Northern Ireland. And I am quite interested at the appropriate time interested at the appropriate time whether the noble Lord, Lord Faulkner, will actually declare whether he is no longer quite so whether he is no longer quite so keen on the old settlements, devolution settlements, that I can but assume he was part of during but assume he was part of during the the government that he served in, that it's not quite as in, that it's not quite as convenient now in this bill to do the things that the devolution requirements have.

I was very requirements have. I was very interested to hear of the comments from Lord Weir, because the Northern Ireland arrangement again, has another dynamic between Northern Ireland and the Republic of Ireland, where there is again a swapping over and a commonality of health provision. And it's quite commonplace that people come and go and, and also just consider the matter of abortion was raised. And that has had a different dynamic across our United Kingdom over many years. And the record of of my voting in the then House of Commons will show that on matters of, of that, that rather heated abortion debate that happened some years ago, I took no part in it.

I abstained because I appreciated the devolution settlement. That was a matter for Northern Ireland Assembly to actually come to its own conclusion. And so we have to ask ourselves, what is this bill? It is is it a criminal justice bill? We have 42. Henry VIII powers exercisable by Ministers. So the bill actually before us, it is not actually the bill that will affect people's lives, because that will be written later, because this bill has so many of those Henry VII's powers in it and many of those Henry VIII powers, as I described in Second Reading, are shouldn't really be there.

We should not be having Henry VII's powers to create criminal matters under Statutory Instruments and delegated legislation. That is just not the way we do things. So is this a criminal justice bill? I don't think it is, because this has now morphed very much into a health bill. It seeks to amend the the NHS act. And I think it is the intent of many of the supporters of this Bill, that it be the NHS that actually does these things, that actually advises, that provides the medical staff that actually does the deed, don't know which chemical might be used.

It may be barbiturates in in England, it might be heaven knows what in Scotland. So you know, these are serious matters. Is it a medical bill. And I believe that it is. And bill. And I believe that it is. And because it has morphed increasingly into a medical bill, then we have to whether we agree with the devolution settlements or not, then we have to respect the devolution settlement. And my noble friend Lord Harper highlighted very, very clearly that this is the danger of a private member's bill that is so interweaved and entrenched with the complications of a devolution settlement.

And whether you're for this bill or against this bill or whatever, these are complex matters. These are matters of a different potential, life or death, depending on which border you're close to. In this United Kingdom, this is a matter of health in Wales. Now, just looking back to that Covid period, I know it's a period that we all look rather like to forget, unpleasant as it was, but at that time I did. I'm sorry to keep mentioning my noble friend Lord Harper.

We we were somewhat active in the space. And you remember that? I mean, these were matters of life and death. Covid was deemed to be whether I wasn't quite so keen on the measures. I actually voted against them all, but they were deemed to be measures of life or death, because that's why the measures were so draconian. And I remember very clearly I came up with what I called the Wilkinsons conundrum. Not really a good conundrum now, because Wilkinsons have suddenly gone into liquidation.

But I made the point that because Wilkinson sold fresh fruit and vegetables, tins of beans and pots and pans, because it sold everything it was allowed to open. Whereas the lunacy of the independent trader next door, who only sold pots and pans was not allowed to open. Now, we did that for whatever reasons that was deemed to be a matter of life and death. Now Wales did something entirely different because in Wilkinson's in Wales they had to hide the pots and pans.

One could buy the beans and everything else, and they had to put a cover over the pots and pans. Matters of life and death. We allowed Wales to have its way. Now this is most seriously a matter of life or death. And we have a devolution settlement and it

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has to be respected. Yeah.

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Yeah. But. My Lords, I declare. An interest. In this debate. Today I'm chair
11:15
Baroness Grey-Thompson Portrait Baroness Grey-Thompson (Crossbench)
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In this debate. Today I'm chair of Sport Wales, which is an arms length body of the Welsh Government. I'm president of the LGA and a director of Living and Dying. Well, and very recently I spoke at a fundraiser event for a hospice in Wales. My Lords, I think this is a fundamental part of why we are here to debate legislation and look at how this bill might impact various parts of the UK, most specifically England and Wales, and I am concerned that we could end up with vastly different systems in England and Wales.

I think generally there is a lack of understanding on devolution. Certainly in sport I seem to spend quite a lot of time in meetings going and devolution, and I think we have to be careful what we do in Westminster and what should be a matter for Wales when the health service is devolved. Now. The Equality impact assessment lacks information on how this bill could work in practice, and I do understand that there's lots of meetings and discussions with the civil service that are going on, but I think we have to be really mindful about how this aligns with the responsibility of the Senate and the responsibility for setting policy, funding and managing the NHS in Wales, and this does include the organisation of it, the funding of health services with power, residing with Welsh Ministers who work through local health boards and NHS trusts.

And I'd like to follow up on the comments from the noble Lord, Lord Harper, who talks about what happens in cross border situations. I experienced that in real life. I lived in England, which I still do. I worked full time in Cardiff. I lived at my parents home, which was sometimes quite challenging for me in my late 20s. But my GP was based in Wales because that's where I spent most of my time. That's where some of my hospital appointments were, some of the treatment I was having at the time, which was at the University Hospital of Wales.

It was really important that I had access to that kind of specialist support and because my GP was in Wales, my baby was born in Wales even though I lived in England. So there are a number of cases like this that we have to be very mindful of. I do have amendments on pregnancy that we're going to be discussing in, in later groups, but I think we have to really, really carefully. And this is where I very firmly put my Welsh hat on, even though I'd normally say that probably that I was British.

We have to be very careful about what what Westminster decides is or isn't a Welsh matter. We could damage relationships by seeing the toes of what's happening in Wales. We also have to be rid of of what is happening in Wales and the rest of the UK and in Wales. The NHS budget for 2526 is about 600 million, and there's extra funding for health and social care, which is part of a larger 1.6 billion uplift for public services. But there are many challenges in the health service in Wales at the moment, and also looking at funding for local councils.

There's a big gap and these pressures are driven by inflation. Increased demand for services like social care and schools. And we have to understand how this bill is going to work in reality. Now, I absolutely agree with Baroness Smith of Llanfaes. We do not know what the next Senate is going to look like. We might have some very sensible negotiations, or we might be starting completely from scratch, but we have to be really careful of not stepping on the toes of Senate and the members.

And I think there are some questions that I think I would personally find very helpful. And I would like to thank the noble Lord Lord Gove for for raising some of them. So we do have to understand what is going to be the cost of Wales. What impact is it going to have on other services? Will the health service in Wales have to cut services? I mean, this applies for the bill in England as well. If this service goes ahead, what is going to be the impact on palliative care? We're going to pick that up in later amendments.

But I also think it's really important. Picking up on the noble Lady, Baroness Coffey said, needed to understand about the conversations that have been had between Welsh Government, Welsh Government officials, with the supporters of this Bill and with His Majesty's Government. I would like to thank the noble and learned Lord for inviting me to a meeting on the 3rd of September, which I found invaluable. Being able to meet doctors from Australia. But in that meeting, the noble and learned Lord said there had been significant support, and I'd be interested if it's possible to expand on this.

I think we do need to understand how many civil servants are currently working on this. Who's running the build team? Is it the Ministry of Justice? Because that leads us into different discussions. Is it the Department of Health? I met someone last week who is working in a government department, who told me that they were working full time on the implementation of this bill. I'm not sure he meant to tell me that, but these are really things. Because once this bill passes, how it works is it's absolutely it's life and death.

And I think we also need to understand whether, you know, His Majesty's Government is going to be allocating.

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I'm very interested in that, because the response I've had from the Minister is that nobody should the Minister is that nobody should be working on this beyond the bill team. Nobody should be working on implementation. So it's very implementation. So it's very interesting what the noble Lady has just said.

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just said. Thank you very much. I was give a bit more around it. I was at the Lady Mayor's parade and a member of Lady Mayor's parade and a member of the public came up, introduced himself to me, told me that this is what he was doing and we agreed to what he was doing and we agreed to disagree on on the outcome of the bill. And then, probably slightly bill. And then, probably slightly patronising, he followed up and said how wonderful he thought I was said how wonderful he thought I was and to keep going.

So sorry. I didn't mean to make a point that didn't mean to make a point that was was amusing to the chamber because this is far from amusing, but these are the details that we need to understand, because we need need to understand, because we need to understand whether there's far more going on behind the scenes, whether the bill as it stands and whether amendments are accepted or not, whether the presumption is that there will be very few amendments accepted, as happened in in Another place, or actually in Another place, or actually whether the support of this bill are really open to making it better.

And I know I think I'm second on the list of the number of amendments that have been tabled. My competitive edge sort of failed in this example, my my noble friend Lady Findlay is about 30 amendments ahead of me. My amendments are absolutely to improve this bill. Many are slight drafting changes, changes of words. They are to improve this bill. And that is our role. That is what we must remember. We have to improve this bill. We have to make it workable.

And if I come back to the point of this grouping, we have to make it work for England and Wales. And we have to remember as people who work in Westminster, we have to remember that we have a responsibility to the people of Wales and we shouldn't step on areas that are shouldn't step on areas that are not for us to step into.
11:22
Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Conservative)
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My Lords.

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First debate. At committee. Stage on this important bill. So I hope the House will allow me just I hope the House will allow me just to take a minute or two, if I may briefly set out the approach to Committee stage of the Official Opposition, as my noble friend Lord Carmel and I both said at Second Carmel and I both said at Second Reading, the Official Opposition has no collective view on this bill. has no collective view on this bill.

And as such, and although each member of the opposition frontbench will have their own view on the will have their own view on the Bill, we will seek to support noble Lords across the House in their Lords across the House in their scrutiny of the Bill. We will also table a small number of additional amendments where we feel parts of amendments where we feel parts of the Bill need probing further, we will not seek to delay the passage will not seek to delay the passage of the bill, nor we will, nor will we seek to hold up progress at we seek to hold up progress at Committee stage.

Instead, we will seriously engage in detailed seriously engage in detailed scrutiny of the bill so that we can collectively deliver the best possible piece of legislation. And possible piece of legislation. And in that regard, may I respectfully pay tribute to the noble and learned Lord, Lord Falconer of learned Lord, Lord Falconer of Thoroton, for demonstrating his openness to improving the Bill already by putting down a number of amendments which are on which we hope to get to today, that reflect concerns that have already been raised by noble Lords.

And I do speak for all my colleagues on the opposition frontbench when I say that I look forward to working with him to ensure that we can and do send a better bill back to the other place. Now, my Lords, turning to the amendments in this group, they relate, obviously, to the territorial extent of the bill. And my noble friend Lady Coffey is seeking to remove references to Wales in the bill so that it would apply only to England. And while I am not entirely persuaded that making this an England only bill is necessary per se, I do think these amendments raise important questions about devolution.

And really the core question, if I may put it this way, for the noble Lord, Lord Falconer of Thoroton, is this why does the bill not either apply to the whole of the United Kingdom on the one hand, or only to England on the other hand? Because at the heart of this, as the noble Lord Lord Thomas of Cwmgiedd said, and although various Acts of Parliament may put us to sleep, a speech by the noble Leonard Lord never does. And I was listening very carefully.

This and these amendments speak to the devolution settlement we work with, and the inconsistencies and confusions of that settlement. I think the noble Lord used the word complexity and it is extremely complex. And of course, in this area we have the problem that criminal law is not devolved to Wales, whereas health is devolved. And to pick up the point made by the noble Leonard Lord, with which I respectfully agree, declaring the appropriate interest, Wales should not be regarded as inferior to Scotland.

I think that is a point of general application. Now the Scottish Parliament, as noble Lords know, is currently considering its own legislation on this topic and the Scottish Bill is significantly different. I hope noble Lords have picked this up significantly different in key ways, most markedly in the definition of terminal illness, which lacks in Scotland, the six months to live test which whatever view we take on the bill, I think it's fair to say, is at the heart of the bill before us.

The definition of terminal illness in the Scottish Bill is this. Let me just read it out. It's just a couple of lines. For the purposes of this act, a person is terminally ill if they have an advanced and progressive disease, illness or condition from which they are unable to recover and that can reasonably be expected to cause their premature death. Not quite sure about the word premature in that context in all cases, but that's what the text says.

Now, leaving aside the point that those residents in one part of the United Kingdom will therefore have different rights to assistance under the law to those in another region of the United Kingdom, should both bills pass? I do see the point. My noble friend Baroness Coffey is making. If the people of Scotland may choose whether to have a law for terminally ill adults who wish to end their lives. Why, I ask, so to speak rhetorically, I'm looking forward to hearing the response of the noble Lord, Lord Falconer.

Why should people in Wales not have the same choice? And I think that is the key question that the noble and learned Lord has been presented with by this group of amendments.
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Baroness Merron Portrait Baroness Merron, The Parliamentary Under-Secretary for Health and Social Care (Labour)
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Yes. opening comments of the noble Lord. Lord Wolfson, which I felt were helpful. And let me also thank Norman noble Lords for this debate. I also would like to set out some points about the role of government Ministers, as noble Lords will be well aware, the government remains neutral on the principle of assisted dying and on the passage of this bill, whether or not the law in this area should change is absolutely and rightly a matter for Parliament, and I want to make it clear that I, along with my noble friend Baroness Levitt, will speak during committee as government Ministers responsible for ensuring that the bill, if passed, is legally robust, effective and workable.

So to that end, I will not be providing a government view on the merits of proposed changes, which are, rightly a matter for noble Lords to decide. Throughout Committee stage. My remarks will focus only on amendments where the government has significant workability concerns. I hope this will be of assistance to noble Lords in their consideration of amendments. When no comment is made, any workability concerns are less significant that the government is unable and the government would be in these regards, is unable to confirm at this stage that the current drafting of those amendments is fully workable, effective or enforceable.

If I can

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now turn to the amendments in this group. A brief question related to the

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A brief question related to the point raised by the noble Lady Baroness Grey-Thompson. So the Minister's very carefully said both Minister's very carefully said both today and in answer to some written questions, that there are officials rightly working on the legislative drafting of this bill to make sure that it is workable. And that is completely proper for for Ministers and officials to be doing that. Can I just on the point that Baroness I just on the point that Baroness Grey-Thompson, does she have officials either in her department or elsewhere that have gone further or elsewhere that have gone further than that and are actually working on implementing the legislation? If it were to pass both houses of

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Parliament. The noble Lord will be aware, as

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The noble Lord will be aware, as will your Lordships' House generally will know, that Ministers have been absolutely consistent in have been absolutely consistent in setting out what is the right and proper role of officials, as is usual in a private member's bill, and I will refer to that shortly. and I will refer to that shortly. Also, if noble Lords have got individual concerns, they are very individual concerns, they are very welcome to, of course, raise them with me.

But turning to the amendments in this group, I, I refer to them as seeking to restrict the eligibility criteria to apply to individuals in England only, rather than England and Wales as as at present. These amendments have minimal legal effect unless they are coupled with amendments to later clauses in the Bill clause. Clause one is largely declaratory. This group of amendments would conflict with later operative provisions in the bill, unless consistent amendments are made to later provisions.

I now just want to pick up just a few of the points that have been raised, but perhaps I could say more generally, and certainly to the noble Lady Baroness Coffey, who raised a number of points about engagement, I will be pleased to write to her further. I have done my very best to ensure that all her questions that she has laid have been answered, and I know I hope she will accept apologies if that is not the case, but I've certainly endeavoured to do so.

But I will also review, of course, the points made in this debate made by other noble Lords, where they are relevant to the government. Perhaps I could just say to the noble Lady, Baroness Smith, who raised a question regarding legislative consent motions. UK government officials have, as would be expected, discussed these matters with Welsh Government officials and the management of the legislative consent process in the Senate is, of course, a matter for the Welsh Government. If I could just, in

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closing, make a few general comments about engagement. If the Baroness if the Baroness

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If the Baroness if the Baroness May in relation to the LCM point May in relation to the LCM point the legislation, Justice and Constitution Committee in the Senate has made a statement in Senate has made a statement in relation to that, they haven't received enough information in regards between the conversations regards between the conversations between the UK government and the Welsh Government in terms of why certain clauses are not not engaging with the LCM process, would the Minister be able to would the Minister be able to respond directly to that point in terms of why this information has not been shared with the Senate?

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Yeah. I will certainly look into the matter. The noble Lady raises, and matter. The noble Lady raises, and I'll be very pleased to write to her. But the first point I just wanted to make here was about engagement with the Welsh engagement with the Welsh Government. And of course, Ministers have not themselves met Ministers have not themselves met with the Welsh Government in relation to this Bill. Again, as would be expected. As it's not a government bill. I know that the sponsors have met with the Welsh Government to discuss the policy intent and to negotiate which clauses require a legislative consent motion.

The sponsors are also leading engagement with Scotland and Northern Ireland, whilst and to the point made earlier by the noble Lord Lord Harper and other noble Lords. UK government officials are providing technical support to support the sponsor, as well as engaging with Welsh Government officials to discuss technical matters in relation to clauses that require a legislative consent motion or clauses for which Wales requested that further changes be made. Officials do have regular meetings, and they can be as frequent as weekly, as has been the case at some point over the last few months,

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and I, of course. Mention, I think the noble Lady

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Mention, I think the noble Lady might be about to sit down. She mentioned that the role of Ministers is to ensure that this Ministers is to ensure that this bill is legally robust, it's effective and workable, but surely safety has to play some part of

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safety has to play some part of that as well. I'm I'm sure it would be

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I'm I'm sure it would be expected that. That safety is absolutely paramount. I think that the point to be made, and I look forward to hearing the words of my forward to hearing the words of my noble friend. It is not our our position in government to deal with position in government to deal with matters of policy. And as I say, we are restricted to the areas that are restricted to the areas that any government would be restricted any government would be restricted to.

I would just say that we will absolutely work with the Welsh Government, NHS England and Wales Government, NHS England and Wales to understand the impact of any changes to the law or provision of changes to the law or provision of healthcare services in Wales during

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the coming stages of the Bill. Here I make a declaration of interest that I have an assistant funded by Mr. Bernard Lewis, who helps me in relation to this bill, and I make a declaration that dignity in dying paid for the printing of material that was circulated to peers in my name before this process commenced. Could I compliment the Baroness Coffey on the short way that she introduced the issue? It's an important issue, and I very much
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None Portrait Sponsor. Lord Falconer of Thoroton (Labour)
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hope I can put to rest most of the misconceptions that were expressed during the course of this debate, during the course of this debate, as everybody agrees, criminal law as everybody agrees, criminal law is not devolved to the Welsh Senate. Therefore, any change in criminal Therefore, any change in criminal law has to come from the UK Parliament. You cannot proceed with Parliament. You cannot proceed with assisted dying without changing the criminal law. Therefore, the UK criminal law. Therefore, the UK Parliament has got to provide a Parliament has got to provide a legislative change for that.

Healthcare is rightly devolved to Healthcare is rightly devolved to the Welsh Ministers and the Senate. the Welsh Ministers and the Senate. The bill makes provision in England for Ministers to produce for Ministers to produce regulations as to how assisted dying will be implemented in dying will be implemented in England, and how it is to be regulated. There is a requirement regulated. There is a requirement in the bill. This is clause 42, in the bill. This is clause 42, which requires Ministers to produce such regulations.

It's wrong. As a matter of the devolution settlement, to require Welsh Ministers who are responsible for health in Wales, to do that. It is for the Welsh Government to decide what provision to make. So, unlike clause 41, which relates to England, Wales Ministers are given the option to introduce such regulations as they see fit. Those regulations will permit the assisted dying process to be introduced in Wales, in the National Health Service and for Welsh Ministers, the Welsh Government, to provide whatever provision for regulation for it as they see fit.

My the noble Lord, Lord Wolfson said. Why are we legislating for England and Wales, but not Scotland in the same time? Because we are doing exactly what I'm so glad Lord Gove asked me to do, which is to respect the devolution settlement. So just let me finish. Let me finish the whole thing, then come back. The the way it works in this structure is, first of all, we in this Parliament determine whether the criminal law should be changed.

Secondly, the Welsh Government is given power to introduce regulations that power should normally be given to Welsh Ministers by an act of the Senate. Therefore, a legislative consent motion has been proffered by the Welsh Government for the Senate to decide on as to whether or not the Senate would be willing to give us consent to legislate in an area which would normally be done in the Senate. Now the LCM, the legislative consent motion in the Welsh Senate covers, and I just give this so that you can consider them at your leisure.

Clause 40, which gives Welsh Ministers power to issue guidance. Clause 42, which gives Welsh Ministers power to regulate as to how it is to be introduced in the health service in Wales and what regulation it should be. Clause 51, which gives the Welsh Government power to talk about and make regulations about the Welsh language. Clause 54, which gives them a general power to give regulations, and clause 58, which gives the Welsh Ministers the Welsh Government power to introduce certain of the provisions.

Now this arrangement has been discussed by myself and the sponsor in the other place, with the Welsh Government, and by Welsh Government I mean Welsh Ministers and Welsh officials. We have done what they, the Welsh Government, would wish us to do to respect devolution. We have taken these powers in the Bill, subject to Parliament, so that there is not a position where, after this Bill is passed, Welsh Ministers do not have the power to introduce regulations if they choose to do so.

Now, I have listened to this torrent of points about Wales saying it hasn't been thought out. I say with suitable humility that we have thought it out and sought to reflect what good devolution practice would require. I don't invite people to come back, but please think about what I have said and consider. Hold on. Consider whether or not it represents the right position. Can I just deal with two other points? First of all, Baroness Smith, in a very clear speech, said maybe one should amend the bill to give the Welsh Senate the power to make a decision about the criminal law in relation to assisted dying.

And it was a point that I thought Lord Thomas of Krmg was sort of flirting with. We have not taken that view. We have taken the view that the right way to deal with this is in accordance with the existing devolution settlement. Now, could I take if the noble Lord Lord

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Gove has not been satisfied with my answer so far, he may continue with his question. I'm very, very grateful to the noble Lord for the clarity there. As a broad point, the devolution settlement encompasses not just intergovernmental relations, but respect, of course, for devolved legislatures and their committees. And with respect to that, the the And with respect to that, the the legislation, Justice and Constitution Committee of the Senate has expressed concern that Senate has expressed concern that the Welsh Government has said that only a narrow number of clauses in the Bill should be subject to the Bill should be subject to commencement by Welsh Ministers in the zenith alone, and has expressed its concern about the lack of its concern about the lack of detail from the Welsh Government on these matters.

I would be very interested in the noble Lords views interested in the noble Lords views about the adequacy of both the Welsh Government and the UK government's sharing information. government's sharing information. More broadly. The committee also pointed out that there is dubiety, pointed out that there is dubiety, at the very least, about whether or not sections 42, one, 42, two, 51 not sections 42, one, 42, two, 51 two and 51 three of the bill will be implemented by regulation only of Welsh Ministers, or will be subject to automatic commencement through the automatic commencement

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backstop in due course. In relation to the noble Lords.

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In relation to the noble Lords. First point, the Legislative Justice and Constitution Committee Justice and Constitution Committee is making about the width of the LCM. The legislative consent motion is they want the legislative is they want the legislative consent motion to extend not just to the health provisions, but also to the provisions that relate to the change in the criminal law and the safeguards. They argue that those changes in the criminal law those changes in the criminal law should also be subject to it.

My view, and it is a view I think, shared by the Welsh Government, is no, you don't need a legislative no, you don't need a legislative consent motion for the UK Parliament to do that which it is Parliament to do that which it is entitled to do, which is to change the criminal law.

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Lord Harper very grateful to the. Question that the noble Lord asked, which I didn't answer.

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asked, which I didn't answer. I'm very grateful. I'm grateful for that clarity, because it is for that clarity, because it is clear that as a result of that, even though Westminster will be operating within its legislative competence, it will be doing so in a way that violates the express wish of the committee. And again, as I pointed out in the previous section of this debate, it is the also expressed wish of many within Welsh Labour to see criminal justice devolved.

But put that to one side. The other key question was is it the case that Welsh Ministers may commence? Sections 42, one, 42, 251, two and 51 three of the Bill by regulation only by their regulations? Or is it the case that the automatic commencement backstop might apply?

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In those cases. It will. Depend upon the decision made by the Welsh

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decision made by the Welsh Ministers. Noble Lord, Lord Harper. Grateful to the noble and

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Grateful to the noble and learned Lord. I've listened very carefully to what he said, and I absolutely accept that he's conducted extensive engagement with conducted extensive engagement with Welsh Ministers, based perfectly understandably, on the framework of understandably, on the framework of the Bill, as he's and the sponsor in the Commons have drafted it, he will know that one of the concerns will know that one of the concerns that many have in your Lordships' House is about the extent to which Ministers have powers, and the extent to which some of those regulations should actually be put regulations should actually be put onto the face of the legislation.

And I'm sure as committee progresses, we will have those progresses, we will have those debates. And my question is, if it's ends up being the wish of this Parliament, that more of the detail Parliament, that more of the detail about how the legislation is going to be implemented is actually put to be implemented is actually put in primary legislation, how is it that we're going to do that in a that we're going to do that in a way that satisfies the desires, perhaps, of this Parliament, but doesn't trespass, given the way he's chosen to set out the framework but doesn't trespass over the devolution framework.

And therefore, had he considered just devolving the power to the Welsh Senate to do the change to the criminal law in this narrow case, and then they would be able to be able to make, as the noble Lady said, to then have the full power to change the law and implement it. I accept that what he has done makes sense in the way he's drafted the bill. But if we significantly change it, I think that's going to

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cause a real problem with how it's implemented. Sure. I understood the question. As far as devolution is concerned, I don't think the question of regulations on the face of the bill is the right issue. The right issue is who's got power to produce those is who's got power to produce those regulations, and does that offend against the the devolution settlement? If he's got a question about there's not enough detail in about there's not enough detail in relation to other areas, I'm happy to answer that.

But this is not for this group. Those are my submission.

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this group. Those are my submission. Yeah. Just before he does, he sat down. He sat down. Fine, fine. Let me ask. Let me ask him the question. Okay, fine, fine. Well it's a it's an fine, fine. Well it's a it's an it's it's intended to be helpful about trying to he said he didn't really understand my question. My really understand my question. My question is if we set out on the face of the bill, some of the face of the bill, some of the details that he currently envisages are in regulations and therefore the House decides on them, as opposed to them being for Ministers in either the UK government or the Welsh Government.

That's going to cause a problem for the approach to devolution that he has conducted. And I just wondered whether he had thought about that. That was that

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thought about that. That was that was my question. Sorry for not expressing it clearly, quite. Understood what I've said. It's

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Understood what I've said. It's for the regulations insofar as they deal with the Welsh Health Service to be delivered by Welsh Ministers. So it's quite inappropriate for us

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to put them on the face of this bill. My Lords.
11:49
Baroness Coffey Portrait Baroness Coffey (Conservative)
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I was brief at the start because I wanted to give the Minister the I wanted to give the Minister the chance to open up for transparency, for the benefit of this House. I'm sorry to say. I'm hoping hoping that the letter will give that, but I'm concerned that it won't. And the reason I say that, as been well explained in the discussions of what's been going on in the Welsh Senate, I should point out to the committee that in the supplementary to the latest legislative consent motion, it says the UK government has not confirmed their position as to whether they believe the consent of the Senate is required for this bill, as amended at the House of Commons Report stage, but have

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acknowledged that some clauses do. Well, my Lords. When. Will the government share with

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Will the government share with this House what it thinks is devolved and what it thinks is reserved, and why is it reluctant to do so? This is what I'm to do so? This is what I'm struggling to understand now. I've been asked outside of this chamber, why am I bothered about Wales? Well, why am I bothered about Wales? Well, I care about Wales anyway. It may not be widely known. I went to school in Wales. I've got family in school in Wales.

I've got family in Wales. Both my parents are buried Wales. Both my parents are buried in Wales. But I would say that I'm also here as a legislator and I'm used to having been an MP and a Minister, a Minister and a Cabinet Minister, a Minister and a Cabinet Minister, often being taken to court on a details of legislation and also the back and forth with other devolved administrations. So other devolved administrations. So I'm not doing this simply to try and be awkward.

It's because we are trying to define the legislation. So the legislative committee in the Welsh Senate believes clause one should be devolved. And I think that's probably coming from the fact if I give you another example, people might be aware of the issue of smacking. So in Wales they were able to basically use their child welfare powers. They then made a request and we will come on to this later in the debate about amending the Government of Wales Act, I think, but recognising that under this bill, the only context in which help with assisted death assisted suicide has to be in healthcare settings, surely there is something there about the Welsh Senate having the opportunity through later amendments to make that determination in the first place? And the reason I mention that now is because my noble friend Lord Markham and indeed the noble Lord, Lord Thomas, talked about we should be deciding the principle of whether or not this is in that regard, actually recognising the whole.

I'm strongly of the view that actually this should be through an amendment to the Government of Wales Act actually be taken out of this bill. That's why, to some extent I've put this in here. So I want to ask the Minister again, would the Minister confirm their position as whether they believe clause one? I'm very happy to answer the noble Lord, Lord Falconer of Thoroton, about whether he believes that certainly the Welsh Parliament does. And then further, would she agree to put in the library minutes of the meeting so we can understand what is happening between the two governments as to the practicality and legality of this aspect of the bill.

I know Ministers, understandably, will often say it's all legally privileged. Actually, those of us who've been in government know that you tend to get small aspects of legal privilege and actually lots of policy content in regarding and summarising, which is not legally privileged. So that is where I'm hoping the Minister and indeed, if necessary, the sponsor. I don't quite understand. It's one of the most complicated private members bills I've ever seen, and I hope that we can get this area of transparency.

And actually, just an not?

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Yeah yeah, yeah. Nobody has given me any indication of whether she intends to withdraw the amendment or excuse

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to withdraw the amendment or excuse me. Well, my Lord, I was actually hoping to get an answer from the Committee stage. We can speak more Committee stage. We can speak more than once in this because we're trying to understand otherwise. Later stages of committee could Later stages of committee could become really quite painful and report as well. So I'm hoping to

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report as well. So I'm hoping to get an answer from the Minister today. I have been absolutely clear

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I have been absolutely clear that insofar as clause one affects a change to the criminal law, it is a change to the criminal law, it is reserved insofar as implementation of it by the health service is concerned. That is a matter for the concerned. That is a matter for the Welsh Government. And it's. Not if there's any lack of clarity in that answer, let me know.

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I would be grateful for any advice that has been given to him by officials to be shared with the by officials to be shared with the House, because it is helpful when we're determining legislation to we're determining legislation to understand that, and it would be especially helpful to understand who the government have said they're only getting involved on they're only getting involved on legality, practicality, to actually express a view. They won't even tell the Welsh Government what

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tell the Welsh Government what concerning. Yeah. I just emphasise my previous comments. I think it would be extremely helpful for this debate if I were to write to the noble Lady, setting it all out as she requires. Following on from my previous answers to written

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questions that have been laid. Yeah, yeah. Well, I hope that also the department will take a better attitude in determining things like freedom of information requests we've already had from the Cabinet Office that actually, whether or not this is now in the public interest, whether to declare information that they hold. And, my Lords, I hope the government and Lords, I hope the government and indeed I can see the Deputy Chief Whip is there on the front bench, takes this away because this is a takes this away because this is a serious matter.

This is one of the most important bills that we will consider in this Parliament. And I consider in this Parliament. And I think it's important that we are transparent and have full understanding that is shared across this House. With that, though, I beg to withdraw amendment one,
11:55
11:56
None Portrait Amendment:2 Baroness Finlay of Llandaff (Crossbench)
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part of medicine in Wales and I have a paid session there, but I also have received incidental part time research support from Living time research support from Living and Dying Well, of which I'm a Non-remunerated director and I'm a patron of several hospices and patron of several hospices and hospice services, both in Wales and hospice services, both in Wales and across the UK. Before I start addressing the wording of this, I would like to thank the Chief Whip for the message that was sent out previously and I hope that the that the usual conventions and respecting each other will be respecting each other will be observed.

It was a pity that there clearly was an error yesterday with a letter that was sent to the press and was being tweeted about at three in the afternoon, but it was three in the afternoon, but it was addressed to our our your lordships. But we didn't receive it until 7:00. But we didn't receive it until 7:00. And that was after a blank email had arrived. So really that was an had arrived. So really that was an error. But I do hope that we can be vigilant about the way that we communicate with each other, and communicate with each other, and that we do engage in meaningful and respectful conversations.

And I wanted to raise that because there has been a question about the number of amendments that are down in my name. I am most grateful to the public Bill office, who have worked incredibly hard to be supportive of us, and 44 of mine are corrections to wording in relation to other bits of the bill, and will put down at their advice to make the intention of another amendment clear. So please, could nobody think that the numbers count? It is actually the quality of the discussion and the intention behind it, because we are really trying to make this legislation work, and it has been difficult because financial aspects relating to palliative care have been deemed to be out of scope.

This bill is called the Terminally Ill Adults Bill. Every patient who is terminally ill has palliative care needs. It's 100%. Some have them at a minor level or relatively easily solved level. Others have them at a very major and complex level. But I do worry that we're forgetting the importance not only of palliative care, but of specialist palliative care in the way that we're talking about services being delivered and the danger that people will not be able. And I'm going to the word ability to make a proper, informed decision if they do not have the choice to have the care that they need, and if they have complex needs that they can access specialist palliative care, which has links to pain services, to radiotherapy, to palliative surgery, to all the other aspects of specialist services that I have been privileged to work with over decades.

But I am well aware in many parts of the country are missing because we have black holes. I'm afraid, in the provision of palliative care in some places, and it is literally a postcode lottery. So if you are going to make a decision and you have the ability to make a decision, you must be able to understand the information given to you. And that means that you must have facts that are accurate, that you can understand. You must be free of pressure and coercion, and we will come on to that.

And you must have the capacity to make that decision, and we will come on to that. But I do want just to focus on the the facts that you may need to make a decision, because if the diagnosis is actually wrong, and we know that at post-mortem, 1 in 20 people are found to have died of something different to the disease to which they were being treated. If the prognosis is wrong, and we know that a six month prognosis has a 48% chance of being right, and that's from a really good systematic review.

If you are influenced by fear and past experiences that may have been decades ago and that do not apply to modern medicine and modern specialist palliative care in these days. And if you have got misinformation from the internet, it may even be that you put the wrong wording into the internet. And only last week I heard of a patient who believed herself to be dying because she had misunderstood the information that she had. She thought that she had a terminal illness and would be dead shortly.

Actually, it was not a progressive terminal illness, but the communication of complex information had meant that when she heard what she was thought she was frightened of, she actually couldn't take on any more information at all. So the word safety that my noble friend Lady Baroness Grey-Thompson raised, I think is absolutely paramount if we are to enable people to make safe decisions, we know that palliative care can identify remedial causes of distress and misunderstandings. We know that if you're a pressure, if you're a patient on a hospital ward at the moment, you are only too aware of the pressures.

There are patients being treated in corridors. You may be treated in a four bedded bay with a perhaps another bed put up in the middle behind curtains, where you can hear everything going on. That is not an environment to have complex, intimate decisions about what you're frightened of, about what you're thinking might happen, and you see the staff actually at wards, understaffed and unable to cope. There's something else that has happened. If you're in the receipt of bad care, you do become depressed, you become demoralised, and you develop suicidal thoughts.

And I will just draw attention of the house to the work of Cicely Saunders, who was the founder of Modern specialist palliative care, who described total pain. And that is your experience of a physical pain is greatly enhanced by emotional, social and spiritual concerns. And that takes me to the social aspects that will influence a decision and why you have to be able to make a decision on a level playing field. We know that poor living experiences, poor housing and inadequate heating all contribute to despair.

There are 111,000 people every year who die in poverty, and of those people dying in poverty, 28% are of working age, many with children dependent children desperately worried about what's going to happen to their children. What is the best way to manage the last months of their life in relation to the children that they will be leaving behind? But when we look at ethnic minorities, it is much worse. 47% of black people who die and who are of working age die in poverty.

That's a pretty shameful statistic. We know as well that there are language problems. The 9% of the population in England and Wales do not have English or Welsh as their first language. That means the way they receive information. To be able to make a decision may be quite distorted. Those of us that have worked with interpreters will be familiar with the situation where you raise a question with an interpreter, the interpreter and the patient have a long conversation, and the interpreter comes back with 1 or 2 words, and you know, you've missed an enormous amount of really important detail.

So the other problem is the misunderstanding amongst these groups. People think that palliative care shortens life. Now 1 in 5 in the ethnic minority groups think that palliative care shortens your life. They don't understand that actually good palliative care results in better quality of life, and in fact certainly doesn't shorten your life. And you may live for a fair bit longer because we discover problems that have been pulling you down. Now that drops to 1 in 20. In the white population.

There is a problem in this bill when we talk about being able to make a decision, because the coordinating doctor could be anyone, they could be at any level with any level of experience. They don't have to be a specialist in the in the disease or condition that you have. They don't have to have a great deal of experience at all. And sadly, in a survey done recently of the population, 10% of people think that assisted dying is equivalent to hospice care.

Now, if you've got that amount of misinformation out there, things become really difficult. This has been sold as a solution to suffering, as a solution to pain. I'm afraid that pain is easily managed. And actually, that touching interview with Michael Palin recently about his wife being in hospice demonstrated how quality of life can be completely turned around with care. It's been portrayed as if you just take one little tablet and it's a Hollywood death. I'm afraid the evidence isn't like that, and we'll come on to that later on.

So I am concerned that unless we make sure people are able to make good decisions, they will not be move.
12:05
None Portrait Deputy Lord Speaker Baroness Watkins of Tavistock (Crossbench)
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Amendment proposed in clause one, page one, line four. Leave out
12:05
Lord Shamash Portrait Lord Shamash (Labour)
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page one, line four. Leave out capacity and insert ability. I have listened very.

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I have listened very. Carefully to what Baroness Finlay has said, and she's put an enormous amount of work into the enormous amount of work into the background to this bill. But what she didn't address was the wording of the change from capacity to ability. And it seems to me that the Mental Capacity Act runs right through like a thread, right through the whole of this bill, to where we get to the issue about consent and what have you.

And it may be certainly the medical officer, Chief Whitty, amended that sorry considered that in his comment and what I think the House might be grateful to receive or hear is the extract from the Mental Capacity Act, which talks about initially about an impairment. In this case, it would be an illness and it talks two tests of the diagnostic test and the functional test. The diagnostic test is being ill. The functional test is to understand the information, understand the relevant information about the decision, including the consequences of each option.

The second one is to retain the information. Hold on to that information long enough to make the decision and use away information. Way the information as part of the decision making process, and then to be able to communicate that decision. And that seems to me clearly capacity, not ability. And I would invite the hon. Lady to withdraw her amendment.
12:07
Lord Pannick Portrait Lord Pannick (Crossbench)
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Yeah, I agree.

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Baroness Finlay speaks with enormous authority. Based on enormous experience. But we're considering an

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But we're considering an amendment which seeks to replace capacity with ability, as clause capacity with ability, as clause three of the bill makes very clear, capacity is the term used because capacity is the term used because there is a well established, tried and tested scheme under the Mental Capacity Act of 2005. By contrast, Capacity Act of 2005. By contrast, the word ability, which the noble Lady seeks to insert is inherently Lady seeks to insert is inherently uncertain.

It has no defined legal uncertain. It has no defined legal meaning. There are later amendments to this bill to clause three, which to this bill to clause three, which do seek to address the concept of capacity. In the context of this capacity. In the context of this bill. They are very important amendments, and I look forward to amendments, and I look forward to our debates on those amendments. But to insert ability as the

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governing concept would simply cause confusion. Yeah. I absolutely agree with the

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I absolutely agree with the noble Lord Lord Pannick. As the noble Lady knows, noble Lady, Lady Finlay, she and I have worked together on many, many, many years on many health issues. But actually on many health issues. But actually I don't think she addressed the issue about why she wanted to issue about why she wanted to change the wording, and given that we worked on the bill in 2005, that we worked on the bill in 2005, that actually put capacity on the legislative.

I'd be interested to know what her reasoning is. I know what her reasoning is. I particularly think that's important because the noble Lady didn't address the issue of choice and of address the issue of choice and of course, ability, capacity and choice are central to this bill. choice are central to this bill. And I would wonder why the committee that whose report we have before us didn't take any evidence before us didn't take any evidence at all from terminally ill people who have the people who need to make the choice in this matter.

So make the choice in this matter. So I think that was a grave mistake on their part, and possibly would have their part, and possibly would have led the noble Lady to take a different view.
12:09
12:10
Baroness Smith of Newnham Portrait Baroness Smith of Newnham (Liberal Democrat)
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Ill, if I may, I must, with due respect, say that as also one of the committee members, it was a point that was put forward on a number of occasions. And unfortunately there was a majority of people in the committee of 7 to 5 against, by the way, the nomination process worked. And so it was a feeling those members not to invite terminally ill people to speak. It was something that those of us who were in the minority, who were in favour of the bill and hearing them tried on a number of occasions to get there, but that

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was not allowed. Sorry. My Lords.

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My Lords. It is helpful to your Lordships' House to be going into. Discussion.

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Discussion. Discussions that actually. Included private discussions. The motion that your Lordships' House

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motion that your Lordships' House passed did not suggest that. And there are also, of. Course, will be known to many.

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Course, will be known to many. noble Lords ethical concerns vulnerable. Can I just.

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Can I just. Remind that your Lordships' House of the conventions of the House and an intervention.

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House and an intervention. On an intervention is not ideal. So if we can just follow normal conventions, that would be helpful.

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conventions, that would be helpful. Well done. Thank you, my Lords. I note that my former tutorial partner from Oxford was intervened partner from Oxford was intervened on earlier for speaker, or interrupted for speaking for too interrupted for speaking for too long beyond the ten minutes, I shall endeavour still to be within ten minutes, despite having been ten minutes, despite having been doubly intervened upon. The report noted that the Committee had not noted that the Committee had not taken evidence.

We will leave it from terminally ill people. I will from terminally ill people. I will leave it at that. In terms of responding to the noble Lady Baroness Thornton. But we took evidence as we were requested to do, on safeguarding and procedures, and I think within the confines of a very short committee, we took a wide range of evidence. Should we could we have taken more? Absolutely. But within the confines of what we were able to do, I think we did a job, and I certainly did not at any point speak against or not appropriate, I think is an unfortunate legal point because, my Lords, the amendment says people should have the ability to make the decision and ability reaches far beyond the narrow confines of the Mental Capacity Act.

So at various points during committee, we will talk about capacity. The committee did take evidence on capacity. And one of the key things to bear in mind about the Mental Capacity Act is it was never designed for something that would be about a decision that is life or death. So we need to be very clear as a Committee of the whole House, as

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parliamentarians. When the Mental. Capacity Act is

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used in. Life and death issues in sorry. The mental capacity.

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The mental capacity. In my the Mental Capacity Act is used in life and death situations. If somebody decides not to have care, the doctor has to ensure that that person has capacity to make that person has capacity to make that decision. So it already is used in that way.

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used in that way. My Lords, I am grateful to my noble friend for pointing out that noble friend for pointing out that the issue, the Mental Capacity Act, is used in life and death issues, but it certainly wasn't designed but it certainly wasn't designed for assisted dying. And it is not, for assisted dying. And it is not, I would suggest, a robust test for these particular purposes. I think these particular purposes. I think if we are going to pass this legislation, we need to be sure that we have tests that are as that we have tests that are as robust as possible.

But and in particular, one of the points that particular, one of the points that we need to bear in mind is that the we need to bear in mind is that the legislation wasn't drafted in the way that it is normally drafted. It was drafted in a way that was put as on a shoestring. It is surely up to your Lordships' House and the other place to ensure that the provisions that we have in place do not look as if they've been made on a shoestring.

They need to be absolutely robust, because decisions about capacity can be taken at a moment in time. We need to ensure that a decision where somebody says, yes, I think I want an assisted death is actually where they are at a later stage in their illness. But, my Lords, the idea of ability go.

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I will be very brief. She says that. It only. Applies to moments in time. Is

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Applies to moments in time. Is she aware that section 24 of the Mental Capacity Act applies the Mental Capacity Act applies the concept of capacity to allow people to make advanced decisions that a later stage, they will not wish to

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later stage, they will not wish to have treatment? That is life saving. I am indeed, and that is why I

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I am indeed, and that is why I think it needs to be very clearly probed. If that is what your Lordships' House intends. If that is what the Other place intends, is what the Other place intends, then legislate for that. But I am not persuaded that all members of not persuaded that all members of your Lordships' House and of the other place, will have the expertise that the noble and learned Lord Lord Pannick has. Now, I think I've probably taken enough I think I've probably taken enough interventions for the moment.

There will be other people who may be will be other people who may be able to be intervened on for a fifth or a sixth time. My Lords, fifth or a sixth time. My Lords, one of the things that Second Reading that was very clear was Reading that was very clear was that some noble Lords who are in favour of this legislation, wanted to support the legislation and were open to to be amended. There were other noble Lords who simply said this legislation is about assisted dying.

The citizens of the UK want assisted dying. Therefore we must support this legislation. My Lords, that would be a dereliction of our duty. We need to ensure that any legislation that is passed is robust and that if noble Lords have passed it, they have probed the Mental Capacity Act, they've probed questions of capacity, ability and that the legislation we get is robust and will stand the test of time. My Lords ability goes beyond capacity, and the reason why this matters so much is that the simple choice between an assisted death or not an assisted death is not so straightforward.

And the reason I wanted to speak and I will come back in subsequent groups, was to refer to some of the evidence we took because evidence giver after evidence giver said, if we are going to have assisted dying, whether they were in favour or not, we need to have good palliative care, we need to have better palliative care than we have at the moment. And one of the real problems is if this bill goes through, it says people have to be told their choice, the choice between the palliative care that is available to them and other options.

My Lords, there is a gross inequity in palliative care availability in this country. For some people, there might be a genuine choice between getting the care they could have or an assisted death. They may get to a point of saying the castle isn't enough, but many parts of the country, people are not being offered that palliative care. And if we don't make that available, we are potentially going to create legislation that causes people not to have the choice that those of your lordships are so passionately advocating for this bill, but are making constrained choices because the health service isn't giving them what they need.

So I think a broader discussion about ability has merits, and that is not to cut cut across a debate and the need for capacity, which will come up at various points in this debate.
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Baroness Browning Portrait Baroness Browning (Conservative)
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personally. I thank you very much, my Lords. I many years ago, in another place, I many years ago, in another place, I served on the Pre-legislative Scrutiny Committee and also was present taking the Mental Capacity Act through the House of Commons. When I came to your Lordships' House in 2010, I was fortunate enough to secure a law House of Lords inquiry to look post-legislative at how the Mental Capacity Act was working, and I would simply go on to say that in the evidence we took at the time, the ability of the medical profession.

And by that I don't just mean doctors, I mean across the piece and including social care workers was not as ideal as maybe it's sounding in the house on the floor of the House today. I think whatever is is built into this bill in order to assess either capacity or ability, there's going to need to be a heck of a lot of training for us all to feel comfortable that the professionals involved actually know how to go about their task. And if I may just make one further point, I just draw the House's attention to the report last month of the National Audit Office, which stated that the Department for Health and Social Care and NHS England do not clearly understand what proportion of palliative and end of life care is delivered by independent adult hospices.

They therefore are unclear how much they are reliant on the sector, or what the real impact of government funding is. We have heard that palliative care is patchy. I know to my own recent experience with a close relative that had I not been somebody capable of organising that myself, it would not have taken place. So we are dealing with really not finite disciplines here in this debate in this particular group, and I would just caution the House it's not as perfect out there declare.

declare.
12:21
Baroness Butler-Sloss Portrait Baroness Butler-Sloss (Crossbench)
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That I was a vice president of the hospice care in Exeter. I'm probably the only person in this House who's actually tried cases of capacity again and again, both as a High Court judge and in the Court of Appeal. One case was so difficult that the Court of Appeal, of which I was presiding, sat to 1 a.m. in the morning. You may not have thought the Court of Appeal did that very often, and it is important for your lordships to realise that some cases that I tried were extremely easy to try.

One particularly called miss B, where she was obviously competent, but other cases were extraordinarily difficult. One case was where somebody with a needle phobia and who was expected, the one that we did to 1 a.m. who was expected to have to have a caesarean. And she objected because she couldn't bear the idea of a needle. And at one in the morning we took the view. She did not have the mental capacity to decide on her caesarean. She was hugely relieved, had the operation without any trouble.

But that was not a unique case. The time was, but not the problem. And I think, my Lords, you, my Lords, I of.

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Course, enormously respect the noble Ladies experience and of course, her ability to make these course, her ability to make these judgements. I'm sorry she had to sit until 1 a.m. Could I just ask her simply, though, if she feels her simply, though, if she feels those decisions would have been more or less complex, more or less

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more or less complex, more or less difficult if she'd been judging them on the basis of ability? You know, I have not the

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You know, I have not the remotest idea. I mean, it's such an important point. I would have to go away and reflect. I'm not commenting on ability or capacity. commenting on ability or capacity. The point I'm making to your Lordships' House is the DfT for a Lordships' House is the DfT for a doctor or several doctors, probably GPS. There's the College of Psychiatrists, which I'm an honorary fellow, have said rather firmly. They want nothing whatever firmly.

They want nothing whatever to do with the panel or anything to do with this. So we're going to have doctors who are not psychiatrists, who are going to be with other people, deciding on with other people, deciding on whether somebody does or doesn't have capacity, which is currently have capacity, which is currently in the bill. All I just warn your lordships is this is an it can be particularly with depression. And one last thing I would say is I had a friend who was a solicitor who was suffered from depression.

She said she used to fall into a black pit and try to crawl up the sides that were slippery. And it was clear to me that when she was in that depression, she certainly didn't have the ability to make really serious decisions. So I just warn your lordships about the potential problems of assessing capacity.
12:25
Baroness Lawlor Portrait Baroness Lawlor (Conservative)
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Support the amendment by the noble Lady Baroness Finlay to substitute ability in for the word capacity in clause 11A as clause three explains. And we've already spoken about this at length. Capacity is to be understood as defined in the Mental Capacity Act 2005, but capacity so defined is the wrong, in my view, the wrong measure to use. Whether someone is in a position to make a proper judgement about ending their own life, the mental Capacity Acts sets a very low threshold for having mental capacity.

The act requires, and it could hardly do otherwise that the person is the person concerned must be able to understand the information relevant to a decision, but it dictates that this requirement should be understood in the relaxed way, because it says in section three two that a person is not to be regarded as unable to understand the information relevant to a decision. If he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances.

Using simple language, visual aids or any other means. Now we have heard from the noble Baroness, Lady Findlay, about the problems of information, facts, evidence, understanding and problems which she has encountered in her very distinguished specialism. In effect, then someone who can grasp only a diluted, simplified version of the information needed for a decision is still thought to have capacity to take it. The act adds that although the person concerned may be able to retain the information in section three one, be it says the fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make that decision.

Now. The act, therefore allows that someone who cannot retain the information in the normal sense of the word retain, which means that something is kept in this case in the memory nonetheless has capacity. Although the act makes the threshold for mental capacity as low as it can. Arguably that is good for the purpose of the act, because very strong reasons are required before we take an individual's power of agency over important decisions about the conduct of their lives, which is the result of declaring that they lack capacity.

If there are any grounds, however slight, we should accept that they have capacity. But my Lords, in the case of the present bill, the position is reversed. We are dealing here with a decision that in its gravity and irrevocable, in irrevocable nature, is completely unlike most of those or all of those important decisions that the Mental Capacity Act was designed to regulate, where the decision is to end one's own life, then what matters above all is that the agent is really able to understand its meaning and its consequences.

It is not enough in the case that the information relevant to the decision is grasped in a simplified or pre-conceptual form, as the Mental Capacity Act definition would allow, nor that the information is retained only for a moment, then to be forgotten, as again is allowed by the Mental Capacity Act. Definition. The threshold for being allowed to take the decision must be much higher, even though making it higher will take away the power of agency from more people than a lower threshold, it is wholly justified when, as here, it concerns a decision that will, if made, set entirely and irrevocably remove an individual's power of agency.

And I agree that the word ability lacks precise legal definition. And I'm very grateful to the noble and learned Baroness who who was very candid about that, what that could mean. And it lacks the precise legal definition that capacity has, but better and precise phrasing that points in the right direction that one than one that points in the wrong way. Moreover, the phrasing of the amended clause indicates how we should understand ability.

It is an ability to make the decision the grave and difficult one to end one's own life. Clearly, then, an ability commensurate with the gravity of that difficult and grave decision is is an appropriate way, and I support the the aim and indeed the wording of the noble Baroness Cass amendment, because of the gravity of the decision that is

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being taken. My interest does register as a trustee of Saint John and Saint
12:31
Baroness O'Loan Portrait Baroness O'Loan (Crossbench)
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trustee of Saint John and Saint Elizabeth's Hospice in London. My Lords, the first clause of this bill sets the tone for the rest of the bill, and it has so many deficiencies and such inherent danger that it is rendered necessary. The tabling of so many amendments, of course, multiple amendments were tabled at the Committee stage, but they were not permitted to be debated or voted on in the other place. So, my Lord, our duty is to scrutinise this Bill.

Our duty is not to meet arbitrary timetables and limited numbers of days for committee. We have to do it properly, because on this work that we do rest questions of life and death. Clause one deals with the who. Who can decide how to end their life. Sorry, who can decide to end their life with medical support or be assisted to end their own life when they can't do it themselves? The definition of who is simple and sparse. It demands only capacity.

Having reached the age of 18, being ordinarily resident here and having registered with the GP practice, it deals also with what is required. The process for determining that any decision made by a person who fits the definition in clause one is made by someone with a clear, settled and informed wish to take their own life and is made voluntarily, but is not the product of coercion or pressure. We will come to that. But my Lords, that is not enough, my Lord.

The decision to end one's own life is the most profound decision one can make. Some decisions are, one might argue, not as immediately serious if it is a fit of despair or loss of hope. I decide to refuse treatment. I might still change my mind. Similarly, if I stop eating, I may choose to reverse that decision. If I decide to end my life, there is no coming back, no reconsideration. And that is why it's such an important matter. My Lords, the noble Lord Lord Pannick referred to, I think, advance directives and these provisions by which people can declare on their future care.

But, my Lords, the decision to refuse treatment and to go for a natural death is not a proactive decision to end life. There is no precedent for the Mental Capacity Act being used for a decision to end life, but. I

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would like to just. are. Hundreds of. Decisions made in the NHS and in

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Decisions made in the NHS and in independent care about life and death. Decisions every day of the death. Decisions every day of the week. And I'm going to give a very brief example. My brother has had brief example. My brother has had renal failure for 40 years. He's been brilliantly looked after by Guy's Hospital, and he's been on dialysis.

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dialysis. The last. Five years. After the failure of the last.

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Transplant, it's. Become more and more wearing for him, more and more disabling, and him, more and more disabling, and he has decided that by Christmas he

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he has decided that by Christmas he would like to make the final decision with the. Help of. The support that he is getting

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The support that he is getting with the guy's team to end his life.

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He is supported in that by his wife, his brother. And sister, and his children,

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And sister, and his children, and we have supported him to make his own decision. It is a. Life and his own decision. It is a. Life and death decision that he will be supported through, and that's the supported through, and that's the way it happens day in, day out, in the health service. It is a nonsense to say that life and death

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decisions are not made. And by. The way, what test will they use?

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The way, what test will they use? They will use the mental Capacity Act. Now, I was going to say I was Act. Now, I was going to say I was going to come back. Yeah, okay. Sorry. Well, the noble Baroness has told us a very, very sad story told us a very, very sad story about her brother, but it really is not on the issue which I'm speaking not on the issue which I'm speaking today. Of course, it is the case that decisions about life and death are made.

What I am saying is that are made. What I am saying is that in this case, the decision is to ask the state to enable the person to administer that, and for the to administer that, and for the state to bring all the forces and all the resources available to do that. And I'm saying that that is that. And I'm saying that that is what we're debating today. Does this bill provide a situation in which capacity is the correct term in this, in this, in this debate, in this, in this, in this debate, this clause, this group? So, my Lords, I support clause amendment Lords, I support clause amendment two, the use of the word capacity two, the use of the word capacity is provided for in the Mental Capacity Act, undoubtedly.

And it says the Mental Capacity Act says that references to a person having capacity are to be read in accordance with the Mental Capacity Act. Very helpful. The Mental Capacity Act was not passed to deal with the decision to end one's own life. Rather, it was formulated with the basic assumption that a person has capacity. The Supreme Court said in a local authority and JB in November 21st that a person must be assumed to have capacity unless it's established that he lacks capacity.

This principle requires all dealings with persons who have an impairment of, or disturbance in, the functioning of, the mind or brain, to be based on the premise that every individual is competent until the contrary is proved. It continued competence is decision specific, so that capacity is judged in relation to the particular decision, transaction or activity in which people may be capable of making some decisions but not others. So, my Lords, there are circumstances in which capacity cannot be assumed and in which a person may not be capable of understanding to the necessary extent the information which should underpin any particular decision making or analysing the consequences of that information, or of making a decision in their own best interests.

When these conditions are not fulfilled. The MCA, the Mental Capacity Act, requires a decision to be made by a third party in particular circumstances, but always in the best interests of the person. As the Royal College of Psychiatrists told us in evidence, assessing a person's mental capacity to decide their own, to end their own life is an entirely different and more complex determination, requiring a higher level of understanding than assessing capacity for treatment decisions. My Lord, we have received very helpful evidence from Professor Gareth Owen, Professor and Professor Katherine Sleeman of the complex life and death decisions at Kings London.

They have stated quite clearly the MCA was not designed to be a universal framework for designing capacity. It is primarily a workaround for the ability of a person to give consent to actions required to secure their health and social care needs in the MCA. In the MCA 2005, the principles applying to and the test for capacity apply in a context where a decision can be taken on a best interest basis for the person. If they lack capacity, they state in the context of the terminally ill adults bill, no such best interest decision could ever be made.

Capacity, my Lords, is not a constant state. It may fluctuate depending on a variety of circumstances, including some illnesses, disabilities, the side effects, medication and a person can have capacity in relation to one decision and not another. A person may have capacity at one time, but not another. It's an enormously complex issue when the decision in question is the decision to end one's own life capacity to make that decision requires very significant analysis in each case at the time in question.

My Lords, that is the reason why capacity is not an adequate word to deal with the situation in which a person is coming to make a clear, settled and informed decision. Capacity cannot be the test. Ability is a wider test, and there will be opportunity for the House to consider what that might look as we go through future groups and issues discussed well in

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the committee. And I would just like to refer to Professor Chris Whitty, who I
12:40
Baroness Hayter of Kentish Town Portrait Baroness Hayter of Kentish Town (Labour)
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think knows a little bit about this, but I would like to reflect, respond and endorse the Lords of the Baroness Carr Baroness O'Loan because she talked about concentrating on the interests of the person concerned. There weren't exactly her words, but she was saying how important that was. And we're talking here about someone who is dying there in the last months of their lives, and they have to, under the bill, have capacity throughout the stage for which this act will provide.

In other words, at each stage they have to have capacity. And Professor Chris Whitty, who, as I say, knows rather a lot about this, spoke and it's on page 153 of the report if anyone would like to look, there is plenty of evidence, and it goes with common sense that when people use an existing system that they've used for many years, that has been used and tried and tested in the courts, they are far more likely to be able to follow a reproducible and sensible pattern of making decisions than if they are faced with a completely new approach which they have not previously used, which may have legal ambiguities to courts and has not yet been adjudicated on.

If we want this bill to work, as I assume the House of Commons did when they sent it to us, and I think a majority of this House does. We must give to doctors and everyone else a form of words they already understand they can use. And above all, what is in the best interest of the patient in front of them.
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12:43
Baroness Cass Portrait Baroness Cass (Crossbench)
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Terminally ill adults and children. But I.

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familiar. With conflict. And polarisation and having been. Attacked and.

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Attacked and. Undermined on social media, and I know that everyone in this House.

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I know that everyone in this House. bill. And so. I was. Somewhat dismayed.

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Somewhat dismayed. By the article. In. The Times. Which I felt led to the

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targeting unfairly. Of some of my noble. Friends who have been. Absolutely committed and working

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Absolutely committed and working hard to. Improve this bill. And I'm not sure. What the. Objective of of that was.

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Objective of of that was. But I think it's regrettable. In.

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In. My view. So just to elaborate, people have asked about ability. Per se.

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Per se. So I talk now as a developmental paediatrician, and we. Generally talk about.

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talk about. Abilities as skills that we. Acquire, whether it's a baby learning to walk or talk, or other

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learning to walk or talk, or other skills that. Are more sophisticated.

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And the skill. That allows us to make reasons judgements. Is the. Development of what's called executive function. I'm sure my noble. Friends are all noble Lords, are all aware.

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And that. Sits in the. Frontal lobe of our brains. And

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Frontal lobe of our brains. And as we well know, teenagers are pretty. Ill developed in that

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pretty. Ill developed in that respect. They can talk with. Great authority about. Why it's extremely dangerous.

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To drive too fast. To break the speed limits, and understand. That, and the.

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That, and the. Next day. Do exactly that. And particularly under. Peer pressure. And that.

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Judgement is something that develops but can also be lost, as we well understand.

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we well understand. When somebody. Sustains a head. Injury or maybe. Has a. Metastasis, a.

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Metastasis, a. Brain metastasis. That impacts that area, or. Indeed during. Dementia.

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Dementia. Our judgements deteriorate. But I think the word ability

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But I think the word ability who. Maybe never. Do develop. That ability. Because of a.

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Because of a. Problem in. Executive function, which is common in. Some. People with. Autism.

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Autism. And they may be well. Able to. Repeat what they've read. Online

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or heard from. Peers. But haven't fully. Understand and processed it.

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Now, some people with autism are of course well. Able to make those judgements.

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And some will. Not be. And it. Is complicated, as my noble. And learned friend.

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And learned friend. Just pointed out, and I think that there is. Perhaps a.

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Perhaps a. doctor's. Abilities to do that.

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It is very much a. Multidisciplinary team effort, and

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one which also requires somebody. Who. Knows that person well, or.

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Knows that person well, or. Indeed maybe multiple assessments. And so this is complex. And the. Word ability.

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Word ability. Does encompass a wider facet. Than perhaps just.
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12:49
Baroness Monckton of Dallington Forest Portrait Baroness Monckton of Dallington Forest (Conservative)
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difficult stories in pictures without any words to try to help without any words to try to help people who struggle with words, to be able to understand and make be able to understand and make decisions about things like the care and the treatment that they might require. We've currently had might require. We've currently had about 80 stories, and they're all about the whole story that people can discuss with their peers, with can discuss with their peers, with their healthcare professionals, with their social, with their families, to help them to families, to help them to understand an issue so that they aren't going to be left out, but that they truly understand because that they truly understand because the words are very it's very easy to think somebody understands when you've explained something in words you've explained something in words and in simple words, and the person is compliant with it.

But when you explain in pictures and enable the person to say what they read in their own words, then you get an their own words, then you get an idea of whether they've understood. I've been trying to think about how I would be able to create a story in pictures to explain this bill. It would be several stories. It would take an awful long time and an awful lot of work to be able to an awful lot of work to be able to do it, but I just wanted to really respond to what the noble Lady Baroness Lawlor said.

I thought it and.
12:49
Baroness Andrews Portrait Baroness Andrews (Labour)
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It's very.

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Impressive to hear all the experience around the house, and I know. That people have shared my.

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Experience when we took the Mental Capacity Act through the House in 2005, that act had been House in 2005, that act had been used in the meeting. It had the most profound and serious most profound and serious consideration in this House, and most unusually, it then had post-legislative scrutiny where we went into every aspect of the bill and Baroness Brown was quite right. There were many concerns raised about the practice and the absence of proper training, but no one, to my knowledge, actually challenged the definition of mental capacity, recognising the huge complexity of the term, the different circumstances in which it is implemented, and the responses that people have had to it, Lord Pannick said.

We have a framework. Safety, said. We have a framework. Safety, I think relies and is expressed in 20 years of practice in the way the 20 years of practice in the way the Mental Capacity Act has been implemented and has benefited so many. I'm not assumption that there is mental capacity was in itself a huge and very important statement of a positive right in the law, and the bill before us is another statement of giving a positive right in the law, where there has not been one, and where so many people are so urgent and desperate for us to find a route through this.

I do think actually, with the experience of that act, with the experience and expertise that this House put into reviewing that act and confirming it with recommended improvements, and the way the act is understood, as my noble friend has said, not least actually by Chris Whitty and the unknown interpretations. We've just heard of the complexity of defining ability, the huge, unframed, unknown complexity of creating another concept in law in context of a bill which itself has got to be so carefully understood, implemented and communicated.

I think we have to stick. May I finish my thought alone? I think we have to stick to what we know, even though we know it is still a work in progress, because it can still be improved. And I hope in the course of this bill it will be, but I think it will be immensely dangerous unless I hear a completely conclusive explanation as to why ability is better. If we were to depart from capacity here.
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Lord Shinkwin Portrait Lord Shinkwin (Conservative)
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That come.

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Thank you. My Lords. I briefly just can't remember Baroness just can't remember Baroness Redfern there send-off for her amazing dedication to her patients. amazing dedication to her patients. That is beyond question, and I hope That is beyond question, and I hope we are united as a house in paying due respect to that fact, and also to the fact that her professional to the fact that her professional experience is a tremendous asset to this House. And my Lords, she spoke this House.

And my Lords, she spoke of her professional experience. I've learnt to speak very briefly I've learnt to speak very briefly of my lived experience on the other side of the table or on the other side of the table or on the other side of it, as a patient, she side of it, as a patient, she mentioned Dame Cicely Saunders and the reference to total pain. the reference to total pain. Mughals. I simply say I've been there. My disability has taken me there far more times than I would there far more times than I would like to remember.

It's awful. It is awful. The bottom falls out of your world and your capacity to think clearly, to think rationally, to think normally evaporates. So I simply said that it is crucial that patients have the ability to choose the choice between assisted death and specialist palliative death, a choice that they do not currently have. And I simply finish on this point. Other noble Lords have mentioned the Royal College of Psychiatrists.

I asked the House to take notes, that the Royal College of Psychiatrists states that applied the Mental Capacity Act to the decision to end one's life is an entirely novel test in, and I quote, unchartered territory with

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and I quote no experience or precedent. Around the discussion.

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Around the discussion. Concerning members of the committee that who was or was not committee that who was or was not called, or who was denied the right to to be called for the committee. to to be called for the committee. I would suggest probably the straitjacket that this House allocated. The time that was
12:56
Lord McCrea of Magherafelt and Cookstown Portrait Lord McCrea of Magherafelt and Cookstown (Democratic Unionist Party)
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allocated. The time that was allocated did not allow the relevant committee the appropriate time to call everyone that they thought was appropriate, and they ought to have been given more time. But it seemed to be it had to be rushed. But concerning the Mental Capacity Act, Margaret Flynn, the chair of the National Mental Capacity Forum, said that it was designed to protect us when others start to make decisions about our lives. Assisting assisted dying was not on the table during the Law Commission's consultation, which resulted in the Mental Capacity Act and therefore the suitability of the Mental Capacity Act 2005 as the test for a decision to end one's life, is a major source of debate, for I believe that many experts and professionals arguing it is insufficient for the specific, irreversible decision.

It was not designed for assisted dying. The MCA was created to safeguard people who lack capacity in decisions about their care, treatment or finances. Assisted dying was not on the table during the Law Commission's consultation, and the Royal College of Physicians, as the noble Lord said a moment ago, said that applying the MCA to the decision to end one's life is an entirely novel test and uncharted territory, with no experience or precedent. It's a very low threshold.

The Royal College of Physicians argues that assessing a person's mental capacity to decide to end one's life is an entirely different and more complex determination, requiring a higher level of understanding than assessing capacity for treatment decisions, my Lords.

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Listened very carefully to the noble Lord and a number of noble Lords. I'm still struggling to Lords. I'm still struggling to understand what the higher test of ability would be over and above the ability would be over and above the Mental Capacity Act. Will the noble Lord let the House know what that Lord let the House know what that higher test is that people would have to go through on ability rather than capacity?

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rather than capacity? Yeah. Lord knows that I am not a proposer of the change of words. proposer of the change of words. I'm dealing with capacity, and therefore I'm also dealing with the fact that those who are fact that those who are professionals within the field, professionals within the field, have stated that the to use it, the capacity act to be a decision to capacity act to be a decision to end one's life is entirely novel, test unchartered territory.

No test unchartered territory. No experience or precedent. That's not my statement. That's a statement of those who are professionals within the field. And they say also that the field. And they say also that to decide to use it as the decision to end one's life is entirely different, more complex different, more complex determination requiring a higher level of understanding than assessing capacity for treating decisions. Capacity can fluctuate in terminally ill patients due to physical fatigue, illness, medication, or delirium making.

The irreversibility of the decision risky under this framework, and therefore I am asking this House to think carefully by trying to base their whole argument on this is good legislation, because mental capacity is a deciding factor.
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Lord Deben Portrait Lord Deben (Conservative)
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Because I think we may be discussing two rather different things, and I'd like to try to suggest that we decide which of those we are discussing. There is the discussion as to whether the word capacity really includes all those things, which people are really pressing for as far as the word ability, which is the point, I think that Lord Pannick was clearly making when he expressed the, the, the nature of the word capacity as used by in the law.

And it is perfectly understandable that people would want to say, here is a word that we use. It's a word which is defined and which has been defined over a long period of time, and therefore it's stood the test of that time. And I can understand Baroness Andrews, I think rightly expressed the amount of time that had been taken on dealing with that. But the question which others are asking is something slightly different. And it is, I think, one that has to be taken into account.

They are pointing out that this definition has not been thought adequate by other professionals, people who aren't lawyers, but who are other professionals who say that this is not adequate for the decision that is being made. The the Royal College makes that very clear. Now, I don't think this House should ignore the fact that they take that other view. I also think it is quite difficult to say that because we have got a definition in one category, which seems to have worked over the years, it would be not sensible to try to make a better one for this.

And therefore one of the questions I really want to ask is this I think I know deeply down the difference between capacity and ability. I think I've had it just recently. I've been working with a relative who has been trying to understand what the doctors are asking her. She certainly has the capability to understand it, if you see what I mean. She's capable in every way under the act. But I must say, up to now, she hasn't had the ability to do so.

And I'm not sure I've had the ability to try to explain these circumstances. So there is no doubt in that. In common parlance, the word ability has a different meaning from the word capability. Now I really want to ask why it is that we don't use both words. Why can't we say has the capability and the ability to do this? Because if we can't do that, then I ask the people who promote this bill to think of whether they can produce an answer which covers the very natural feeling that people have when they look at the words.

This House has to remember that we are producing legislation, which is not going to be easy. People have all said that. And then the answer was, well, if it's so difficult, then perhaps we ought to narrow it and just have this word. I don't think that's a very good argument. If it's very difficult, if the specialists say they can't deal with it under this legislation, this, this definition, then perhaps this House ought to do its job by finding what word should be used, how it should be used so that people can make those decisions.

And then the noble Lady Butler-sloss will not have to think too hard as to whether it would be easier for her to make decisions under that proposal than the one we have. I think what this debate has shown, and I say this to the to Lord Faulkner, I think what this debate has shown is that perfectly reasonable people find a difficulty of bringing ability and capability as the same thing, and if it isn't the same thing, then they will want something which ensures that the narrowness of capability does not mean that people make decisions when they don't have the ability to
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