Terminally Ill Adults (End of Life) Bill

Baroness Hayman Excerpts

Friday 14th November 2025 Lords Chamber

I conclude by saying that a cornerstone of informed end-of-life decision-making is a thorough understanding of all available care and treatment options. Terminally ill adults must be provided with clear, comprehensive information regarding disease prognosis, the range of curative and palliative treatments and the outcomes associated with each. It may be the case that a broader definition of “ability” could be a better criterion, but I like the suggestion of my noble friend Lord Deben that we can use both words. I cannot see anything legally wrong with doing it. Let us not get hooked on the fact that we have had the word “capacity” for many years when we could possibly add the word “ability” and get the best of both worlds.

[Baroness Hayman (CB)]

My Lords, I profoundly disagree with the argument just made by the noble Lord, Lord Blencathra. He suggested that using “ability” rather than “capacity” would end misunderstanding. I cannot agree that that is true because you would be creating an undefined and novel test and substituting that for one that has stood the test of time and is understood by the professionals who will be judged as to whether they have complied with the law when they act on that assessment. I was already committed to the view that we should keep the test that we have, but if I needed further assurance on that, the little interchange between the noble Baroness, Lady Jay, and the noble and learned Baroness, Lady Butler-Sloss, illustrated perfectly to me how one system, difficult though it is, has been used, examined and probed for many years and found to work—as against a new system, where the noble and learned Baroness, with all her experience, had not the slightest idea how that would work.

[Baroness Coffey (Con)]

I think the key difference is that, when this Bill started, it was going to be judge-led. Now it is not and, as a consequence, we are talking about one of the most experienced judges we have ever known; so I think we are comparing apples and pears.

[Baroness Hayman (CB)]

I cannot accept that. I am talking about the Bill that we have before us. The noble Lord, Lord Harper, asked: should we have a novel approach to this? My answer is no; it is safer to continue with the approach that we have.

I want to say one other thing to the Committee. I hope the Committee will accept that, given the experience that I have had here and the honour I had of being Lord Speaker, no one respects more the contribution that this House can make to improving legislation and the commitment that it should do its work properly. The noble Lord, Lord Harper, said that we were blessed in this House with many experts, and that their opinions should be listened to. The noble Lord, Lord Shinkwin, said that we should listen to the voices of those with lived experience. I am sad that the Select Committee did not do that, but I think that that is absolutely correct.

The one thing that we are not is what was said to me in 1974: “You have now been anointed by the popular vote”. I was then a Member of Parliament. It was a long time ago—in ancient times—but it was true. What has worried me slightly about the tone of this debate is that there has been a sense that this was a Private Member’s Bill introduced in the House of Lords, and that we were having the first go at any scrutiny of it. That is not true; it is not true at all. We do often get legislation from the other place that has not been scrutinised, but that is not true of this Bill. It has had much more scrutiny and I think we should have some respect for the fact that that has happened.

People say that we should not have an arbitrary timetable. Of course we do not want an arbitrary timetable. We have to do our job properly, but we should not be forced into a position where we are incapable of completing that job due to having an enormous number of amendments. We should concentrate on the important issues that we want the other place to take our views on seriously. I really think we are in danger of demeaning that process if we allow so much debate that we do not allow the other place to hear considered views on the important issues.

[Lord Harper (Con)]

I have an enormous degree of respect for the noble Baroness, particularly given her position as a former Lord Speaker. I am a relatively new Member of your Lordships’ House, but I have interacted with it. I look around and there are a number of noble Lords here—such as the noble Lord, Lord Pannick—with whom I had a number of interactions on previous matters. So I am familiar with the different role of the two Houses, and I believe it is absolutely our job to get legislation right.

In the end, this is a Private Member’s Bill. It was not in the Government’s manifesto, so it has not been, to use the noble Baroness’s words, anointed by the popular will. This is our job. If in the end this House decides that this Bill is not fit for purpose and cannot be adequately put into law, it is our role to say to the House of Commons, “It isn’t good enough; we need to do this again”. It is our job to say to the Government that this is of such import that, as the noble Lord, Lord Tyrie, said, the Government should do their job and bring forward a better-drafted piece of legislation. That is our right, and we should reserve that right for later stages.

[Baroness Hayman (CB)]

I follow the noble Lord’s argument, but he said that we should say, “We should do this again”. I think that if we reach that situation, the proper formulation is, “You should do this again”, and the other place could consider that. But the way we undertake that scrutiny should be responsible and reasonable and it should not deny the process of doing our job and putting those views and doing that—frankly, we have to be grown up about this and we have to behave responsibly about it.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, this is the first amendment to be introduced by the noble Baroness, Lady Finlay of Llandaff. We all acknowledge her extensive experience and deep knowledge of this issue, as both a doctor and a professor of palliative medicine. Like my noble friend Lord Shinkwin, I expect noble Lords across the House to benefit from the noble Baroness’s advice and guidance as we seek to improve this Bill through Committee.

I have listened carefully to the debate and it seems that there are two related but conceptually separate issues going on. One is a valuable, perhaps somewhat philosophical, debate about the difference between “can” and “able to”; in other words, just because you can take a decision, does it always mean that you are able to take a decision? It is an interesting debate to have.

There is a separate but related issue about how one reflects that or the conclusion one comes to in law. That is really the issue raised by the amendments to Clause 3 in the next group. As both the noble Lord, Lord Pannick, and the noble Baroness, Lady Hollins, pointed out—and as set out in the explanatory note for this amendment—Amendment 2 is linked to Amendment 115 from the noble Baroness, Lady Finlay, which seeks to replace Clause 3 with a new clause. To that extent, the debate we have just had is an hors d’oeuvre before the main course of group 3. Perhaps this is a restaurant that serves its hors d’oeuvres in larger portions than normal.

For reasons that I hope are obvious—I mean no discourtesy to the Committee—I may not be able to stay until the end of group 3, so I hope to take a quick moment now to explain this interrelationship. The proposed new Clause 3 is a considered amendment that challenges the Bill’s reliance on the definition of “capacity” under the Mental Capacity Act. It seeks to make special provision in the Bill for how the definition of lack of capacity is to be dealt with, and it touches on important information and the ability to make decisions. In particular, it builds in information relating to palliative care. I look forward to the Minister’s response to this group and I will read her response to the group of amendments on Clause 3, in due course, and the noble and learned Lord the sponsor’s response to both groups. Although we will debate these two groups separately, they seem to me to be intimately connected.

With some trepidation, I will respond to the point made by the noble Baroness, Lady Hayman. I am conscious of her experience in both this and the other House, which considerably exceeds mine on both counts. However, I touched on this point at Second Reading and, respectfully and certainly from my analysis, there does not appear to be any constitutional reason why this House should not take its time considering the Bill or even, should it wish to, reject it as a non-manifesto Bill that is also a Private Member’s Bill.

For noble Lords who are interested, there are some useful articles on this point from Professor Mark Elliott, who is a professor of public law at the University of Cambridge. I refer to him because of two important features. First, he is a professor of public law at the University of Cambridge. Secondly, when I was a Minister, he did not agree with me on anything so, if we agree on this, it is likely that we are actually right.

In all seriousness, the noble Baroness, Lady Berger, made a point that I made at Second Reading, which is particularly important in the context of this Bill. A number of Members of Parliament said, both in and outside the Chamber, that they voted for the Bill on the express basis that they relied on this House to give it proper scrutiny. If the noble Baroness wants to intervene, of course I will give way.

[Baroness Hayman (CB)]

I obviously did not express myself very clearly. I was not in any way suggesting that this was a government Bill to which the conventions applied or that there was any reason why we should not properly scrutinise it; I absolutely stand by that, and I do not think that there is any bar to us doing that. What I was suggesting to the Committee, respectfully, is that it should take very seriously the fact that this Bill has been considered and approved by the other place; and that, therefore, in the conduct of our proceedings, we should make sure that we do things in a considered and responsible way. To speak completely personally, I think that this House should be able to vote on amendments—obviously, it has the right to vote at Third Reading—but we should reach decisions on this Bill in an appropriate timeframe. It would not be satisfactory to anyone if this were simply extended and extended so that we never actually reached a view.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful to the noble Baroness for intervening. If there is a difference between us, it may be one of emphasis and not substance, because, respectfully, I do not disagree with anything she just said. As I said in my opening remarks, the Official Opposition’s position from the Front Bench is that we want this House to be able to do proper scrutiny.