Terminally Ill Adults (End of Life) Bill

Lord Hamilton of Epsom Excerpts

Friday 27th February 2026 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, my remarks follow on, very usefully, from those of the noble Baroness, Lady Finlay of Llandaff. She made some points I was going to make, so I will not make them, but I will make some others.

We should consider the interaction between the rather murky world of politics and the role of the commissioner. I would not raise that issue if this role were not entirely, as I understand it, a political gift of the Prime Minister—effectively a patronage office. We surely all know the problems that can create; it has been rather vividly illustrated in recent months. I want to probe what happens if this goes wrong, or rather how we can stop it going wrong in the first place, because there is genuine concern about a lack of accountability and transparency around the appointment process for the commissioner. For that reason, I added my name to Amendment 126 in the name of the noble Lord, Lord Udny-Lister. He is unable to be here today, but he is spot on to suggest that the appointment should be accompanied by a public statement by the Prime Minister, whoever the Prime Minister is, attesting to the suitability, independence and neutrality of the candidate, so that the Prime Minister is ultimately held to account for this appointment and it is clear why they have made it.

The commissioner has a crucial role, with the power to both run and monitor this service, yet the Bill seems to leave the commissioner’s role open to self-definition. They are appointed by the Prime Minister, and that is it; we are all meant to trust it. I do not want to be cynical, but the question of independence and neutrality is important, because this is a controversial and polarising issue. If we did not think it was, we have only to look at the rather testy atmosphere every Friday in this Chamber, let alone on the airwaves in between. We owe it to the public that they feel that they can trust the process if the Bill is made law.

We have to ask what happens if a partisan figure is chosen—how can that be addressed democratically? What is the process if there is a problem with the conduct of this commissioner? Who is accountable for that? That is one of the reasons I added my name to Amendment 913A in the name of the noble Lord, Lord Wolfson of Tredegar, which seeks ways for anyone with concerns about the conduct of the commissioner to make representations to the Prime Minister. The amendment seeks to probe the process by which the commissioner can be held accountable for their conduct.

That takes me back to neutrality and independence. Let us consider: if we leave this appointment, as the Bill seems to, to the Prime Minister, who is given complete discretion about who to appoint, how will we protect the role from political controversy and being seen as possibly partisan? The noble and learned Lord, Lord Falconer, will not want to compromise the role in that way, I am sure, so some of these amendments might be helpful to insulate it from any accusation of bias.

[Lord Hamilton of Epsom (Con)]

Is the noble Baroness not concerned, as I am, that we are conflating expertise with bias? People think that because somebody is expert, they are independent. It does not necessarily follow. There could be people who are expert but at the same time very biased in their approach to any subject.

[Baroness Fox of Buckley (Non-Afl)]

I think that is self-evidently true in the real world, if I can put it that way.

I note that the present Prime Minister is himself personally not neutral. As we now well know, he promised Esther Rantzen that assisted dying would be made legal, although that was not a promise made to the British electorate or in the manifesto, but it was certainly made in public with much singing and dancing. Would the Prime Minister’s personal views influence whom he chose as a commissioner? Noble Lords might think that is far too cynical and I am being grubby—that is fair enough. However, I want to know if there is anything in the Bill that guards against such grubby behaviour, because if anyone thinks there is no grubby behaviour in politics, they need to get out more. If the commissioner is perceived—

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[Lord Carlile of Berriew (CB)]

I have listened to two and a quarter hours of debate on this group. I was not really intending to speak, but I am afraid I cannot resist an “I told you so” moment. I am speaking not because I was name-checked by a number of noble Lords in various parts of the House, but because I think it important to emphasise the background for that name-checking.

First, we have been focusing on the appointment of the commissioner, looking only at Clause 4. I say in credit to the noble and learned Lord that it looks as though a large number of your Lordships have not read Schedule 1 to the Bill, because it is an absolute clear fact and matter of law that if the appointment of the voluntary assisted dying commissioner under Clause 4 was done improperly and not objectively, it would immediately be opened to a host of judicial review cases, which would be brought by every interested party or group looking at this issue.

I want to say something quite different, and here comes my “I told you so” moment. Some noble Lords may just about recall that, early in Committee, I proposed Amendment 120, which proposed returning to a court-based model architecture for the Bill: among others, the noble Baroness, Lady Coffey, referred to that earlier. If we were to follow the provisions of Amendments 120 and 137, which would remove Clause 4(4)(b), (c) and (d), we would have a clear, court-based procedure. Amendment 120 could of course be improved, and I think I am going to be given some facilities by the noble and learned Lord to talk to officials in the near future about that and how it might be designed, but it would mean that the voluntary assisted dying commissioner would then have a much more limited role, which would be to monitor the operation of the Act, receive documents under the Act and report, just as other independent reviewers report, on functions that they are placed in some position of authority over.

I suggest to the Committee that we would not need to have spent the last two and a quarter hours having the debate we have had if we had that simple architecture, which would inspire the confidence of being supported by the courts, knowing that this would be subject to normal court, appeal and evidential procedures. Maybe we should come back to that at a later stage. I hope that the noble and learned Lord may change his mind about that once he considers carefully and in detail what has happened this morning.

[Lord Hamilton of Epsom (Con)]

My Lords, I would like to address the issue of mission creep. I have tabled amendments that come so late in the procedure that I do not think we will ever reach them, but I am concerned that the Bill, if it becomes an Act of Parliament, will morph into something entirely different from what we have all voted on.

I have a confession to make. I voted in the early 1980s for amendments to Lord Steel’s Abortion Bill, which went through at that stage. One of the concerns we had with that Bill was that it would morph into abortion on demand, and abortion on demand was not what we voted for in Parliament. We therefore have to be reassured that this Bill will not do the same thing. I am very concerned that, if it morphed into a euthanasia Bill, we would have a consultant in geriatrics walking through a ward saying, “I want to see those three people in those beds dead by the morning because there’s a bed-blocking issue”, and so forth. I am sure that nobody in the House wants to see the Bill become a euthanasia Bill.

Can we have an explanation from the noble and learned Lord, Lord Falconer, about what happened to the Abortion Bill and why it morphed, without Parliament having any input whatever, into abortion on demand? I am concerned that it might happen with this Bill as well, under the commissioner whom we are talking about. What checks can Parliament have to ensure that the Bill does not go down the same road as the Abortion Act?

[Earl Howe (Con)]

My Lords, I shall speak very briefly to the amendment in this group in the name of my noble friend Lord Wolfson of Tredegar. His Amendment 913A seeks to probe an issue raised by a number of noble Lords in this debate: namely, the means by which the assisted dying commissioner may be held accountable. As the Bill is drafted, and as we have heard, the commissioner is appointed by the Prime Minister. In his amendment 124, my noble and learned friend Lord Garnier would have them appointed by the Crown on the advice of the Lord Chancellor. The point that the amendment addresses is that, whoever appoints the commissioner, there ought to be a clear accountability mechanism and a process whereby concerns about the conduct of the commissioner can be investigated in response to formal representations. My noble friend suggests that representations might be made to the Prime Minister, but I would be very interested to hear from the noble and learned Lord what thought he and his co-sponsor have given to the way in which the commissioner will be held to account.

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[Lord Falconer of Thoroton (Lab)]

I think we will have to disagree on that. It is the normal way for that to be dealt with in drafting, so I am content with it. I am sorry to disagree with the noble Lord, but that is my view.

Amendments 135 and 436 from the noble Lord, Lord Frost, would place a duty on the assisted dying commissioner to check that all the paperwork is in order. Again, I have thought very carefully about that. The role of the commissioner, as far as the panel is concerned, is to pass the two reports on to the panel once he has received them from the doctor, for the panel then to consider whether that case is in order and meets the criteria—is the panel satisfied that there is no coercion and is it satisfied on capacity? I think it is neither appropriate nor necessary to add yet a further safeguard in that respect, because that is why the panel is there. It would lead to overlap and unnecessary delay without, in practice, any additional safeguard. The noble Lord, Lord Evans of Rainow, supported that. For the same reasons, I would reject his amendment.

The noble Baroness, Lady Finlay, made a point about conflicts of interest. There would obviously be a conflict of interest if the assisted dying commissioner had a financial or commercial interest in any sort of provider of assisted dying services. That would be covered by the principles to which the noble Baroness, Lady Levitt, referred in relation to the way in which the appointment would go. I completely agree with the point by the noble Baroness, Lady Finlay, but I do not think there is a need to put anything into the Bill in relation to it.

A number of noble Lords have referred to the risk of mission creep—the idea that an enthusiast or proponent of assisted dying would operate in an inappropriately biased way. All that the assisted dying commissioner can do is act in accordance with the terms of the Bill. As the noble Lord, Lord Carlile, said, if for example the commissioner stuffed a panel with people he knew would take a biased view, he would be acting both improperly and illegally under the terms of the Bill. As the noble Lord said—and I agree with this—Schedule 1 opens the door to every sort of judicial review if that were the position and people became concerned about it. That goes to the amendment from the noble Lord, Lord Wolfson, which would provide for complaints to be made to the Prime Minister. Of course you could make complaints to the Prime Minister, but you certainly would not need the Bill to make that possible; there would be political accountability for the conduct of the commissioner, because the Prime Minister has made the appointment. Equally, there would be legal accountability in the form to which the noble Lord, Lord Carlile, referred.

[Lord Hamilton of Epsom (Con)]

Given the noble and learned Lord’s encyclopaedic knowledge of the statute book, can he tell us what went wrong with the Abortion Bill, which morphed without parliamentary consent, much to the concern of its sponsor, Lord Steel.

[Lord Falconer of Thoroton (Lab)]

Would the noble Lord mind if I did not, as I think what one has to do is focus on this particular Bill?

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[Lord Markham (Con)]

I let my noble friend finish but I just want to give a bit of my own experience as a former Health Minister. I think we would all agree that clinicians always look at what is the best outcome for their patients, regardless of cost. I want to put very clearly here today that, although I am sure it is not anyone’s intention to suggest that clinicians will somehow be incentivised to push one course of treatment, be it assisted dying or another, for reasons of cost, all our experiences of the health service are that clinicians will always put the welfare of their patient first and that financial considerations do not come into it.

[Lord Hamilton of Epsom (Con)]

I wish I could agree with my noble friend Lord Markham, but at the end of the day we have a National Health Service and it has to make choices, and we know that the National Health Service is desperately short of money. If it can save money by making sure that people go for assisted dying, I am sure it will do that, on the basis that then it could keep other people alive. Those are the invidious choices that the National Health Service has to make. I always assumed—I will give way in a minute—that, for the proposers of the Bill, one of their reasons was that they wanted to save money. I agree that the money concerned would not be very big, but at the end of the day there is an incentive to save money by ensuring that people opt for assisted dying, thereby saving the National Health Service money. I give way to the noble Baroness.

[Baroness Murphy (CB)]

My Lords, as a clinician for 50 years in the NHS, I find the noble Lord’s suggestions quite offensive. We have been asked to be kind today and I would ask him to be a little kinder to NHS clinicians in their decisions to try to help people at the end of life.

I just point out to the noble Lord, Lord Harper, that when you are talking about a fully funded palliative care service you are talking about millions and millions, and what has to be allocated. It is exceedingly difficult for the NHS to come to that decision, particularly in light of the fact that insufficient clinicians have been trained in that area, as I am sure the noble Baroness, Lady Finlay, will agree. Certainly, for the assisted dying service we are talking a few thousand—not anything like the sums of money that a palliative care service costs. Let us be realistic about what we are asking for.

[Baroness Royall of Blaisdon (Lab)]

I shall briefly intervene. I am sure that my noble and learned friend will answer this later, but I want to put on record that nobody who is a supporter of this Bill—an amended Bill, as it goes forward—would ever put costs as the major reason for supporting it. I just want to put that firmly on the record.

[Lord Hamilton of Epsom (Con)]

Could I come back on that? I never said that it was a major reason: I just said that it was a consideration that had to be made. Budgets are very strapped in the NHS at the moment and, if it can ensure that people who are blocking beds vote for assisted dying, that will save the hospital money. That is just a fact of life.

[Lord Deben (Con)]

My Lords, I did not intend to speak on this particular amendment until something happened at lunchtime. I have to apologise to the noble and learned Lord, because I am not sure that I can make a joke about it, as he has requested me to in any speech I make. The fact of the matter is that at lunchtime I discovered that my local health trust has withdrawn its payment to Marie Curie, which means that there will no longer be Marie Curie nurses helping people in the final months of their lives; that support has been withdrawn because of the tight budgets in the National Health Service. I am appalled that we are in that situation, but it reminds me very clearly of the fundamental problem of a single-issue Private Member’s Bill, because it asks us to consider something not as one of a series of priorities among which government has to make choices, but as something on its own. That inevitably is a real problem.

The second problem is that anyone who has been a Minister knows how the Treasury works. If you ask it to give you some money to spend and then say, “But we’re going to make these savings”, it always counts the spending and refuses to acknowledge the savings. That is a Treasury mechanism that we have all learned—and I see that a former Health Minister knows precisely what I mean.

The problem with this issue is precisely that: money will have to be spent, but the savings—let us leave aside whether this is a suitable balance—will certainly not be considered, which is why the Deputy Health Minister said there would have to be “reprioritisation”.

So I come to this Committee having been shocked at lunchtime. Perhaps the Chief Whip should not have allowed us off for lunch: then I would not have been able to see this. However, the truth is that I am shocked by the fact that one of the most important palliative care services is now going to be ceased for the part of the country in which I live. That therefore brings me back to the amendment. I think we have to say to ourselves, very clearly, that, if we are proposing to spend money on this, it is quite clear from the Government that that will mean “reprioritisation”, which actually means cutting other money in order to save enough to pay for this.

I hope the noble Baroness will not be upset by this, but I do not understand how the Government fail to do this: in all the advice they give us, they refuse to tell us how much they think this will cost. That is a duty of the Government. They should tell Parliament, if it is a Private Member’s Bill of this sort—I will give way.