Terminally Ill Adults (End of Life) Bill

Lord Blencathra Excerpts

Friday 14th November 2025 Lords Chamber

[Lord Weir of Ballyholme (DUP)]

My Lords, I rise to support the amendment standing in the name of the noble Baroness, Lady Coffey. Some people may detect from my accent that, although I 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. I have particular empathy with the amendments that have been put forward by the noble Baroness due to my experience as a Minister in a devolved Administration. The clarity the noble Baroness seeks goes to the heart of the relationship between the devolved Administrations and Westminster, and it is of particular relevance to this Bill.

Generally speaking, a Minister in a devolved institution will face three categories of legislation. First, there will be reserved matters, which are entirely within the purview of Westminster—national issues, which I think everyone would accept. Secondly, there will be a range of issues which, although not strictly reserved, are of such obvious applicability across the United Kingdom that a legislative consent Motion should be applied. I do not see the noble Lord, Lord Foulkes, in his place, but on occasions even the SNP Government in Scotland have been prepared to sign up to legislative consent Motions. The third category—the bulk of legislation—is situations that should be decided locally, where a devolved Government and a devolved Parliament can choose whether to follow what is happening at Westminster and in England, to take a different path in seeking either to virtually replicate or to amend, or to go in a tangentially very different direction. That is at the heart of democratic accountability in devolution.

I believe that this is an issue that should be decided in Wales. It is an issue that should clearly fall into category three. We all know that we have a very unusual constitutional set-up in the United Kingdom, where devolution to Wales, Scotland and Northern Ireland is on a slightly different basis in each case. That can produce some unusual aspects. What we have today is a certain level of anomaly, because this legislation falls into what may be described as a fourth, hybrid category. As the noble Baroness, Lady Coffey, highlighted, the distinction is between the aspects that deal 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 the Bill makes major decisions that impact on health and social policy. However, we are left with a situation for Wales that means, if this goes through unaltered, that the criminal responsibility will be lifted but there will be no regulations coming from this House as to how that will actually be brought about. It is the equivalent of this House saying that we are going to bring in new road safety measures, which will not apply to Wales, but if you are caught speeding on the motorway there could be no criminal sanction against you. What we have potentially arrived at for Wales is the worst of all worlds.

We need to take a step back. We need to ensure that the wishes of the Welsh people, as exercised by the Senedd—they may change over time—are respected. Rather than, in effect, imposing something that then has to be more or less corrected in Wales by way of changes to their health and social policy, we should be allowing the issue of assisted dying to be decided by the Welsh Senedd. If they decide to make those changes, this Parliament should then reflect them by way of changes to the criminal justice system, which I think would be relatively easy to do.

In the absence of that, the importance of these amendments, as outlined by the noble Baroness, Lady Coffey, is that if we cannot get things definitively the right way round, we can at least get a level of clarity over what aspects apply to Wales, rather than a potential wall of obfuscation. This is an ideal opportunity for the Government and the sponsors to highlight where exactly the demarcation is, which will be very helpful as we move through the rest of this Bill.

[Lord Blencathra (Con)]

My Lords, I support my noble friend Lady Coffey’s 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. We had the Secretary of State for Health saying that he was in charge of it, and the Department of Health and Social Care, which seconded about 30 officials to help rewrite it, in a way taking ownership of it. Then I asked myself: why on earth are we legislating for Wales when health is a devolved matter in Wales and the Senedd is in charge of health matters? This is where it is really Pythonesque, because although 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 a criminal Bill in another?

On 23 October last year, Senedd Members, including the First Minister, Eluned Morgan—the noble Baroness, Lady Morgan—and the Health Minister, Jeremy Miles, voted against a Motion calling for a new law to allow assisted dying in Wales and England. Miles had earlier warned of “huge ramifications” for Wales if the law changed. In total, 19 Senedd Members voted in favour of the Motion, with 26 against and nine abstentions. However, the Senedd does not have the power to change the law on assisted dying in Wales, so the vote was symbolic. The Senedd does not have the power to legalise assisted dying, but the Health Minister indicated that it is likely that future legislation will require another vote to give Parliament consent.

The Welsh NHS, which is almost totally devolved and overseen by Cardiff politicians, would be responsible for implementing the law. However, I understand that the Senedd can still vote on whether to implement the legislation, as parts of the Bill touch on devolved areas, so the Welsh Government would need to pass specific regulations and gain an affirmative vote from the Senedd before the Welsh NHS could provide the service. I am not a great fan of the devolved Administrations, but they exist and they have a genuine job to do. In Wales, this would mean that their NHS and its doctors would have implemented all the provisions of an English law, which they had no power to change. That does not seem right. If the Senedd in Wales can be trusted to run the NHS in all medical facilities in Wales, it should be trusted to make its own terminally ill end-of-life Bill.

Next year there will be Senedd elections, and on current polling there may be a large majority of Plaid Cymru and Reform Members elected. It cannot be right that they inherit a Bill relating to the deaths of about 35,000 people in Wales each year and that they have no say over how their constituents die.

Of course, the Senedd could refuse to give consent to the legislation, but I suspect it will be threatened and blackmailed into doing so. It will be told that it is the English Bill or nothing and that Wales has no power to do its own law, so the Senedd had better approve it or else. But the Senedd could do its own law; all we have to do is grant it the constitutional power to do so.

--- Later in debate ---

[Baroness Berridge (Con)]

As people around me are saying, I do not think I said that. They are neutral. The royal colleges have said that they have problems with the Bill, but they have been neutral on the principle, save for the Royal College of General Practitioners. I am sorry; I stand corrected on that. They are neutral, as is the Association for Palliative Medicine, which is not a royal college.

When one looks at the evidence that we took, of course individuals from within that group would come along whom we had to call. It was right that we did that, but one looks at a corporate view. I enormously respect Professor Sir Chris Whitty, but I heard his evidence on this and he was not the highest expert in the land. He was humble enough to write to correct himself, as he had misunderstood the Mental Capacity Act when he gave evidence in the Commons.

[Lord Blencathra (Con)]

My Lords, we should all be grateful to the noble Baroness, Lady Finlay of Llandaff, for bringing this matter before the Committee, but also to my noble friend Lord Harper, who has highlighted some of the deficiencies in in the Mental Capacity Act. Yes, it may be tried and tested in its current usage but, as we heard from many sides of the Committee, it may be inadequate for dealing with death issues.

I was going to speak in support of Amendment 2, but I might also be willing to support the potential oral amendment from my noble friend Lord Deben. When considering important decisions, particularly in the context of healthcare, it is crucial to understand the distinction between capacity and ability. This is especially relevant for terminally ill patients, as questions about decision-making may arise on treatment options, advance directives and legal matters.

I believe that we should change references from “capacity” to “ability” when discussing decision-making for terminally ill patients. The reason for this change is to ensure clarity and accuracy in describing a person’s actual situation. We should not be afraid to bring in a new word if it is more relevant than “capacity”. Although “capacity” is a legal and clinical term for specific criteria, “ability” is a broader term that may better reflect the practical realities and nuances of an individual’s situation. Using “ability” can help to avoid misunderstandings and ensure that patients are supported in ways that are appropriate to their unique circumstances.