Terminally Ill Adults (End of Life) Bill
Debate between Lord Falconer of Thoroton and Lord Harper(2 days, 14 hours ago)
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Lord Falconer of Thoroton (Lab)
My Lords, I make a declaration of interest: I have an assistant who is funded by Mr Bernard Lewis and who helps me on this Bill. I make a declaration that Dignity in Dying paid for the printing of the material that was circulated to Peers in my name before this process commenced.
I compliment the noble Baroness, Lady Coffey, on the short way that she introduced the important issue. I very much hope that I can put to rest most of the misconceptions that were expressed during this debate.
As everybody agrees, criminal law is not devolved to the Welsh Senedd. Therefore, any change in criminal law has to come from the UK Parliament. You cannot proceed with assisted dying without changing the criminal law. Therefore, the UK Parliament has to provide a legislative change for that.
Healthcare is rightly devolved to the Welsh Ministers and the Senedd. The Bill makes provision in England for Ministers to produce regulations on how assisted dying will be implemented and regulated in England. Clause 42 requires Ministers to produce such regulations. It is wrong, as part 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. Unlike Clause 41, which relates to England, Welsh 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 and the Welsh Government to provide whatever provision for it in regulations that they see fit.
The noble Lord, Lord Wolfson, asked why we are legislating for England and Wales but not Scotland at the same time. It is because we are doing exactly what the noble Lord, Lord Gove, asked me to do—and I am so glad he did—which is to respect the devolution settlement. Will the noble Lord let me finish? Then I will come back to him.
The way this structure works is that, first, we in this Parliament determine whether the criminal law should be changed. Secondly, the Welsh Government are given the power to introduce regulations. That power should normally be given to Welsh Ministers by an Act of the Senedd. Therefore, a legislative consent Motion has been proffered by the Welsh Government for the Senedd to decide whether it would be willing to give us consent to legislate in an area that would normally be legislated for in the Senedd.
The LCM—legislative consent Motion—in the Welsh Senedd covers the following. I give these details for noble Lords to consider them at their leisure: Clause 40, which gives Welsh Ministers power to issue guidance; Clause 42, which gives Welsh Ministers power to regulate how this is to be introduced in the health service in Wales and with what regulations; 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 make regulations; and Clause 58, which gives the Welsh Ministers and the Welsh Government power to introduce certain of the provisions.
The sponsor in the other place and I have discussed this arrangement with the Welsh Government, and by that I mean Welsh Ministers and Welsh officials. We have done what 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 lack the power to introduce regulations if they choose to do so.
I have listened to this torrent of points about Wales saying it has not 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 do not invite people to come back, but please think about what I have said and consider—
Lord Falconer of Thoroton (Lab)
Hold on. Consider whether it represents the right position.
Can I just deal with two other points? First, the noble Baroness, Lady Smith, in a very clear speech, said maybe one should amend the Bill to give the Welsh Senedd the power to make a decision about the criminal law in relation to assisted dying. It was a point I thought the noble and learned Lord, Lord Thomas of Cwmgiedd, 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.
If the noble Lord, Lord Gove, has not been satisfied with my answer so far, he may continue with his question.
Lord Falconer of Thoroton (Lab)
In relation to the noble Lord’s first point, the Legislation, Justice and Constitution Committee’s point about the width of the legislative consent Motion is that it wants the LCM to extend not just to the health provisions but also to those that relate to the change in the criminal law and the safeguards. It argues that 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 that, no, you do not need a legislative consent Motion for the UK Parliament to do that which it is entitled to do, which is to change the criminal law. I give way to the noble Lord, Lord Harper.
Lord Falconer of Thoroton (Lab)
Sorry, the noble Lord, Lord Gove, asked a second question which I did not answer.
Lord Harper (Con)
I am grateful to the noble and learned Lord. I have listened very carefully to what he said, and I absolutely accept that he has conducted extensive engagement with Welsh Ministers based, perfectly understandably, on the framework of the Bill as he and the sponsor in the Commons have drafted it.
The noble and learned Lord will know that one of the concerns of many in your Lordships’ House is the extent of Ministers’ powers and the extent to which some of the regulations should be put in the legislation. I am sure, as Committee progresses, we will have those debates. If it ends up being the wish of this Parliament that more of the detail about how the legislation will be implemented is put in primary legislation, how will we do that in a way that satisfies the desires perhaps of this Parliament but does not trespass, given the way he has chosen to set out the framework, over the devolution framework? Therefore, did he consider just devolving the power to the Welsh Senedd to change the criminal law in this narrow case? Then the Senedd, as the noble Baroness said, would have the full power to change the law and implement it. I accept that what he has done makes sense in the way he has drafted the Bill, but if we significantly change the Bill, I think that will cause a real problem with how it is implemented.
Lord Falconer of Thoroton (Lab)
I am not sure I understood the question. As far as devolution is concerned, I do not think the question of regulations on the face of the Bill is the right issue. The right issue is who has power to produce those regulations and does that offend against the devolution settlement. If he has a question about there being not enough detail in relation to other areas, I am happy to answer that, but this is not for this group. Those are my submissions.
Lord Harper (Con)
He said he did not really understand my question. If we set out in the Bill some of the details 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 will cause a problem for the approach to devolution that he has conducted. I just wondered whether he had thought about that. That was my question, and I am sorry for not expressing it clearly.
Lord Falconer of Thoroton (Lab)
I am not sure the noble Lord has quite understood what I have said. It is for the regulations in so far as they deal with the Welsh health service to be delivered by Welsh Ministers, so it is quite inappropriate for us to put them in this Bill.