Terminally Ill Adults (End of Life) Bill

Lord Moylan Excerpts

2nd reading
Friday 19th September 2025 Lords Chamber

[Lord Moylan (Con)]

My Lords, so much has been said about the principle and the technicalities of the Bill that I thought I would use my few moments to return to the language used in the Bill. I realise that that is a controversial thing to do, because I have seen the reaction to the speech of my noble friend Lady May. I wish to express some solidarity with her, because the argument against her has been that people wishing to access an assisted death do not actually want to die, but suicides presumably do. I think that is a mistake. In the case of suicides, most of them do not want to die. Most of them want their girlfriends or their families back, their fortunes restored or their pain taken away. The distinction collapses when you look at it closely. They are very much in the same position as people who are trying to avoid pain at the end of their life. So I express my solidarity with my noble friend.

There are other points about the language. It is notable that the words “death” and “dying” hardly appear. The poison to be used is described as an “approved substance”, and the still mysterious contraption by which it is to be administered is called an “approved device”. The business itself, when you get to Clause 25, is headed “Provision of assistance”. “Assistance” is the term used throughout the Bill. Is this something that is going to become part of our daily language? “Have you considered ‘assistance’, Mrs Smith?”

We know what this is: it is euphemism, an ancient Greek device for hiding from the gods, through the use of flowery language, something of which you are ashamed. That is what the language of this Bill is constantly expressing at every turn. I think we are right to be ashamed of what is in this Bill. I think we should take the opportunity not only to scrutinise it but, if we see fit, to give the Commons an opportunity to consider it in a second parliamentary Session to see whether its view remains as firm as it is now—which after all is not very firm, purely on the numbers.

I will make one final point in response to an argument that I have heard several times in the course of this debate: that it is somehow discriminatory that some well-off people can afford to go abroad to evade the law and that this is a discrimination that needs to be addressed by giving everybody the opportunity to evade the current law. We never use that argument on anything else, do we? Have I ever heard that argument used when it comes to tax evasion, for example? It is a very strange argument indeed, and one that I think does no credit to those who promote it.

I think this Bill indeed deserves scrutiny, but we are not in any way committed or obliged to pass it. It is a Private Member’s Bill and, if it is the view of the House that it should not pass, that is the view the House should take.

Terminally Ill Adults (End of Life) Bill

Lord Moylan Excerpts

Committee stage
Friday 5th December 2025 Lords Chamber

[Baroness Lawlor (Con)]

I thank the noble Baroness for her intervention.

[Lord Moylan (Con)]

My Lords, I have not spoken in Committee at all so far. I briefly say to those who are objecting—and who take the view that the intervention of the noble and learned Lord, Lord Falconer, should bring the debate to an end—that the debate we are having is about 18, 21 or 25 year-olds. The noble and learned Lord has not said that he is willing to compromise on any of those; as I understand it, he wishes to persist with the age of 18, although he is willing to look at additional safeguards. It does not seem to me, therefore, that his offer of discussions—welcome though it no doubt is—addresses the core question in the debate. So I do not see why the debate should be brought to an end simply by his intervention.

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[Lord Moylan (Con)]

My Lords, I rise to speak briefly to my Amendment 9 in this group. Before I do so, I thank the noble and learned Lord, Lord Falconer of Thornton, for making clear his intentions as regards moving his amendments in Committee. I wrote to him twice about this without getting a clear answer, but there has been a clear answer today, which is that he is not going to press amendments to which there is objection. It is good to know what his intentions are because otherwise we could end up in a situation, which I think would not be convenient to the Committee and would certainly contradict our normal practice, of having to hold Divisions in Committee that normally would be deferred, very properly, to Report. I welcome what he said.

My Amendment 9 is fairly easily disposed of because the noble and learned Lord has explained that both he and I, and indeed the noble Baroness, Lady Goudie, in her Amendment 8, have identified one of a number of blatant errors in the Bill where it says two different things in two different places, and we have drafted amendments to correct that. That is essentially what they do. We have drafted them differently. I think the sensible thing would be if the noble and learned Lord did not press his Amendment 6 today because it would pre-empt mine. Instead, I think the sensible and normal thing, the courteous thing, would be to say that he will discuss the drafting with the noble Baroness, Lady Goudie, and me outside the Committee between now and Report so that we have agreement on the appropriate amendment. I prefer not to have my amendment pre- empted, since I say, with some humility in front of the noble and learned Lord, that I think mine is better drafted than his.

[Baroness Hollins (CB)]

My Lords, I will speak briefly to Amendment 405 because the Equality Act is relevant to it. It provides a legal duty to provide reasonable adjustments for disabled people, which is defined quite broadly and I think would include a person who was terminally ill. The amendment is currently worded that the doctor must

“take all reasonable steps to ensure that there is effective communication”.

Will the noble and learned Lord consider changing his drafting to say that the doctor must “ensure reasonable adjustments are provided to ensure effective communication”?

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[Lord Falconer of Thoroton (Lab)]

I was addressing the wider issue, the one that the noble Baroness, Lady Finlay, was talking about. But it goes to those ordinarily resident in Scotland, who come to England for their medical advice—and if the medical advice says, “Go back to Scotland if you want an assisted death”, would that be a crime? But I also wish to deal with the GP point. If you live in England but have a GP in Scotland, does it debar you from getting it here? I am more than happy to include that in the discussion.

[Lord Moylan (Con)]

My Amendment 14 in this group seeks to expand eligibility for those of pensionable age who have retired from the UK and gone to live abroad. It is a probing amendment, of course; it is not my intention particularly to expand eligibility under the Bill. I am trying to raise a question of equity and fairness but also legal defensibility. I want to approach the issue from a slightly different angle. I endorse everything said by my noble friend Lord Lansley, the noble Baroness, Lady Finlay, and the noble Lord, Lord Beith, in raising practical issues, but I want to approach it on a slightly different basis.

The intention of the sponsor, I think it is fair to say, is that in creating this Act we do not turn England and Wales into a sort of international capital for quick assisted death. That would be an appalling thing to happen. So we try to put some borders and parameters around it and say that this service is here for the use domestically of people who are established here. One way of looking at that is to put the criteria in about having been here for 12 months and so forth, and being ordinarily resident, and all of that. As I say, I agree that those things raise very serious practical issues, but it seems to me—here I tread very carefully, because I am not lawyer—that they raise legal issues as well. Are we to some extent fooling ourselves into thinking that we, although we are the legislature, can create these boundaries and that they will remain firm?

I am thinking about what the Minister said in her reply to the debate on the first group today, in which she was very careful to draw noble Lords’ attention to the fact that certain amendments in that group might be challenged under human rights law or on the grounds of the Equality Act. She said that she could not give assurances that they would not be challenged; that was her being cautious and proper in expressing the Government’s view while being neutral about the Bill. But that raises a flag. How many of the limits that we are discussing now would actually withstand legal challenge? I chose my own example on precisely those grounds.

What if you have lived all your life in this country and paid all your taxes in this country and reached your pensionable age and decided to retire to Spain, say? Unfortunate developments lead you to want to come back and you qualify under the Act for an assisted death; you have a terminal illness and six-month prognosis, and you want to come back to the UK to take advantage of that, maybe because it is not available in Spain or because you want to be with other members of your family—who knows, but you want to come back to do that.

Under the Bill, as I understand it, you would be excluded from doing that. But would a court agree that that was a firm parameter; in other words, would a court agree that the criteria we have established are sufficiently rational that they have a sufficient basis in other legislation, in their understanding of human rights or in practical considerations? There might be all sorts of reasons why courts might say, “Yes, these are rational limitations”. But it could equally be the case that the court would say, “No, that is an injustice. This person has paid their taxes all their life. They’ve only been gone from this country for a few months. Of course, they should be allowed to come back and take advantage of it; it is irrational to exclude them”. That is the point I want to raise.

The noble and learned Lord the sponsor of the Bill has to put in place criteria which not only sufficiently exclude the possibility that we are going to become an international shop for assisted death—which we would all agree with him is something that we do not want to see happen—but are sufficiently rooted that they will be defensible and durable in a judicial context. That is the matter that most concerns me, apart from the practical considerations, about this whole eligibility debate.

[Baroness Whitaker (Lab)]

My Lords, when considering this group, in particular, perhaps, Amendments 300A and 306A, I realised that the small number of noble Lords who have tabled most of the very large number of amendments to the Bill recognise compassion as their guiding intention. I hope they are being reassured by my noble and learned friend Lord Falconer’s comprehensive and expert reassurance on the many safeguards now inserted into the Bill—more safeguards, I believe, than in the legislation of any other country.

However, I am concerned that very extended delays will betray the hope of the woman who nursed both her parents through agonising and protracted deaths, and who now faces the same fate herself. She mourns the fact that her parents were never given the choice this Bill provides. Her words to me as a legislator were: “Have mercy”. Mercy is what this Bill is about, and noble Lords will surely seek the path to mercy. Surely only those whose motives are ideological would want to prevent this Bill from passing, rather than working out the best amendments on a reasonable timetable.

I remain profoundly uneasy at the prospect of Members of this House abrogating to themselves the right to deny the choice of mercy to that large majority of our fellow citizens who want this choice to be available, as reflected in the decisions of our elected representatives. “Have mercy” should be our watchwords.

[Lord Pannick (CB)]

I say to the noble Lord, Lord Moylan, that nothing is impossible in human rights law. But it would be exceptionally surprising if the courts were to say that a criterion as well established as ordinary residence were not a justifiable criterion to address the difficult problem of which people ought to benefit from the advantages that this Bill, if enacted, would confer. One other point—

[Lord Moylan (Con)]

I agree that the notion of ordinary residence is very well established. I am more concerned about the subsection which requires a 12-month prior residency. That does not apply to anything we do in any other aspect of the NHS, for example. You might have been resident here a fortnight, but if you get knocked over in the street, you will be looked after and looked after for free. It is more the latter than the former that I was concerned with. I am grateful to have the noble Lord’s legal assurance but, as he said, it is not absolutely certain. One might retain him if the case came up.

[Lord Pannick (CB)]

If I were advising the noble Lord, Lord Moylan, as a client, I would say that a court would recognise that Parliament, when it enacts legislation of this sort, has to make a choice and decide what is an appropriate and reasonable period to require a person to have satisfied in order to benefit—to prevent a health tourism that we all wish to avoid in this legislation. We should also remember that if Parliament enacts this legislation, the courts will have no power to strike it down in this country. The most that they could do is make a declaration of incompatibility, but that is extremely unlikely in this context.

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[Baroness Andrews (Lab)]

My Lords, I hesitate to interrupt this fascinating debate between our lawyers. I have no legal experience, but I have investigated the notion of domiciliary status at some length for different reasons. I absolutely agree with anyone who has tried to work their way through the 93 pages of conditionalities and various different criteria.

I come back to the central point in the excellent contribution by the noble Lord, Lord Lansley, about the need for consistency with the NHS and the implications of not being consistent. The terminology is not just about domiciliary status. What is the notion of permanence? We could have an equally long and problematic debate over that other element of the terminology. I completely respect that this is a probing amendment, but just as we had the beginnings of a debate on mental capacity and the necessity for consistency and trusting that what we already know works, because we see it every day in practice, so the notion of ordinary residence should simply, as far as I am concerned, end the conversation. I think there is a welcome consensus around the Committee that this is the only definition that is going to be practicable, workable, known and acceptable. I hope we can move on with the debate in that context.

[Lord Moylan (Con)]

Does the noble Baroness accept that ordinary residence does not end the debate because the Bill goes on to impose an additional qualification about having lived in this country for 12 months prior to the date of signing the first declaration? If it were just ordinary residence, legally no issues would arise—there might be other issues—but we also have a 12-month requirement, which appears to me to be arbitrary and risky.

Terminally Ill Adults (End of Life) Bill

Lord Moylan Excerpts

Committee stage
Friday 23rd January 2026 Lords Chamber

[Lord Moylan (Con)]

My Lords, I will be brief; I want to make only one point. I am slightly surprised to be making it, because I expected others to make it during this now quite lengthy debate, although it was hinted at by my noble friend Lord Harper and the noble Baroness, Lady Fox of Buckley. It is to do with public reaction.

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[Lord Markham (Con)]

The main point here is that, by definition, you are eligible for assisted death only if you have been diagnosed to be within six months of the end of your life through a terminal illness. That is the reason that you are applying for an assisted death. That is motivation for doing it, because clearly it is not like those people want to die. We have talked to many people, and I am sure a lot of people have, and they desperately do not want to be in this situation.

[Lord Moylan (Con)]

I am very sorry to interrupt my noble friend, but even the sponsor of the Bill, the noble and learned Lord, has been very clear in saying that the six-month prognosis is a trigger that gives you admission to the process, if you like, but it does not have to be the reason, so it is not by definition the case that if you have the prognosis, that must be the reason. They are two quite different concepts.

[Lord Markham (Con)]

As I said, these are not people who want to die; they are people who absolutely want to live. The only reason they are entering into this process, and the only reason they would be eligible—

Terminally Ill Adults (End of Life) Bill

Lord Moylan Excerpts

Committee stage
Friday 30th January 2026 Lords Chamber

[Lord Pannick (CB)]

The noble Baroness began by asking about my experiences. I do not really want to talk about my personal experiences, except to say that those I have loved have faced a terminal diagnosis. I am very familiar with all of this on a personal basis, as I am sure is everyone—or almost everyone—in this Committee, and our experiences, of course, guide our view as to the merits or otherwise of this Bill.

[Lord Moylan (Con)]

May I ask the noble Lord a question? This is not a trick question; I sincerely want to know his opinion from a legal point of view. The Bill refers—and he has said it refers—to a reasonable expectation of death within six months. Normally, and this was a point made by the noble Baroness, Lady Finlay of Llandaff, just now—and I have some amendments later which address this specifically—a prognosis given by a doctor in a particular case would be an average of the sort that we call a median. That is, 50% of people in your position will die within six months, but 50% will live longer than six months. Which one are you? Would that 50% constitute for him a reasonable expectation, or would he expect a higher threshold to apply in a case such as this?

[Lord Pannick (CB)]

I do not think any doctor, any panel or any court would adopt that type of approach to a complicated issue of this sort. They would rely on the judgment of the doctor, who no doubt would be well aware, or should be well aware, of the provisions of this Bill, if enacted. The doctor will exercise his or her judgment and be able to tell the patient whether there is a reasonable expectation of death within six months. The doctor will give that judgment, and whether you are eligible under the Bill depends on that. It is as simple as that.

Terminally Ill Adults (End of Life) Bill

Lord Moylan Excerpts

Committee stage
Friday 6th February 2026 Lords Chamber

The CQC report on the Mental Health Act, published last week, told us that Black people are being detained at four times the rate of white people, and that people living in deprived areas are 3.6 times more likely to be detained under the Act than other people. I do not think that this is covered in the impact assessment. The answer to these problems is not to be found in killing people; rather, it is to be found in caring for them.

[Lord Moylan (Con)]

My Lords, I have four amendments in this group, three of which are closely related. They are Amendments 85, 894 and 896, the latter two of which are consequential on Amendment 85. I also have Amendment 100, but I will come back to that towards the end. I am grateful to the noble Baroness, Lady Fox of Buckley, and my noble friend Lord Hamilton of Epsom for lending their names to Amendment 85, and to the noble Lord, Lord Carlile of Berriew, for adding his name to Amendment 894

One of the concerns about the Bill is the possibility that the definition of one of the key qualifications, to have a terminal illness, becomes expanded over time—what I am going to call “creep”. I will not detain the Committee with examples from other jurisdictions, but there are examples where the scope for assisted dying has been made available to people with conditions that would hardly qualify as terminal illness and might well not have qualified as appropriate in the minds of the legislators who first put the legislation together. I think it would give the public some confidence in the Bill if they were to know that the capacity for creep was severely limited. My suggestion for limiting it is that there should be a list of what constitutes terminal illness. I am not suggesting that this list should be in the Bill; I believe it should be issued by the Secretary of State by way of regulation and should be updated periodically in the light of medical advice.

I turn now to a couple of questions I have for the noble and learned Lord, Lord Falconer, and I will then deal with some objections that might be raised. My first question concerns his own definition, in Clause 2(1)(a), that

“the person has an inevitably progressive illness or disease which cannot be reversed by treatment”.

My question to him in the first place is whether he regards “inevitably” and “progressive” as adding anything to the notion of being terminal; in other words, is each a subset of the other? Is the definition getting narrower with the addition of each of those words, or are they in fact otiose? If you left them out, would the scope of the definition be just the same? I would be interested to know his answer, although it does not affect directly what I am now going to say.

The question of the list was dealt with in the other place to some extent, and arguments were made which suggested that it would all be very difficult because people did not always die from one illness: sometimes they had two terminal illnesses, or they had complications or comorbidities. Medically, I am sure that is absolutely the case, but I do not think it is relevant to what I am arguing for, because the Bill is clear that you have to pass certain qualifications and thresholds to be considered for assisted dying. One is that you have

“an inevitably progressive illness or disease which cannot be reversed by treatment”,

but you have to have only one of them in order to qualify. You could have two, but you would still qualify—it is irrelevant. You could have one with several comorbidities, and you would still qualify. It does not matter how an individual might die in the end. What matters is their condition at a particular moment and whether they have

“an inevitably progressive illness or disease”

at a particular time—so applying the list does not seem very difficult to me.

The other objection that might be raised is that the list would be very difficult to put together because there are many illnesses or diseases, but I think this is wrong. If one considers illnesses or diseases as a way of dying, and one excludes such things as falling off a roof or some adventitious accident of that character, the diseases or illnesses on the list are all known. We know, medically, what people die of. Very occasionally, a new illness or disease of a terminal character arrives. AIDS was an example in the 1980s and 1990s. It completely shocked us, partly because it is such a rare thing for a new terminal illness or disease to arrive. Of course, my amendment would allow for the Secretary of State to adjust the list if there were such an eventuality in the future, heaven forfend. We do know what they are, and we can put them together. The Secretary of State can make a list, it will be subject to scrutiny—because, as I think the noble and learned Lord will confirm, all regulations made under the Bill have to be made by affirmative statutory instrument—and people will be able to comment. I think that would give them great assurance that creep was not going to be a feature of this. I would be grateful to hear the noble and learned Lord’s response to that proposal.

I come briefly now to my Amendment 100 in this group, which is quite different. This is genuinely probing because, when I read the Bill and got to Clause 2(4), I found a sentence that began:

“Nothing in this subsection results”.


It was strange, typographically, because it is not a new paragraph—there is not a paragraph break—but nor does it run on directly as a sentence. It has obviously been botched in at some point, probably in the other place. Anyway, these things happen. I read it, and then I read it again, and I read it over and over again. At the end of it, I still could not work out what the sentence actually means. Even if I could construe it in such a way that it did mean something, I would not know what it meant in the context of Clause 2. This is a genuine probing opportunity for clarity from the noble and learned Lord as to what import he thinks this sentence has in the clause. It would certainly please me, and I think many other noble Lords, if we understood that and whether, in fact, it should stand or be swept away. My proposal to delete it at this stage is, as I say, entirely probing, in order to hear what the noble and learned Lord has to say.

[Baroness Coffey (Con)]

My Lords, I have tabled Amendment 73. One of the issues here is whether a disease is terminal without treatment. A simple example is type 1 diabetes. The World Health Organization classifies diabetes as a disease. That means that, under the Bill as it stands, as pointed out by witnesses in oral evidence to the Commons Select Committee, anybody who decides not to take their insulin, for whatever reason, would automatically have an irreversible disease and they will die. I want to explore through this amendment whether that is what we are thinking about.

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I make no comment on the other amendments in this group. However, as noble Lords are aware, the amendments have not had technical drafting support from officials. Therefore, further revision and corresponding amendments may be needed to provide consistent and coherent terminology throughout the Bill.

[Lord Moylan (Con)]

May I pursue a point the Minister made about my Amendment 85? My understanding of the Bill, as drafted, is that one has to have an inevitably progressive illness or disease, not that one has to have a six-month prognosis of one’s death. The two might be quite separate.

One might, as the noble Baroness said, have a combination of circumstances that means one is likely to die within six months without having a specific, identifiable disease. The Minister seems to be saying that the Government’s interpretation of this clause is that one does not need to have a specific, identifiable terminal illness; one simply needs to have a set of circumstances that together might result in a prognosis of death within six months.

If that is the case—and that is the Government’s view of the meaning of that clause, as the Minister seems to imply—that widens to an astonishing extent the conditions that might qualify for the Bill. I would like to hear the Minister say—and the noble and learned Lord, Lord Falconer, may possibly want to comment on this when he speaks—whether it really is their interpretation that it could be any set of circumstances that lead to a six-month diagnosis without there being an identifiable illness.

[Baroness Merron (Lab)]

I will briefly look at the actual amendment. As I said in my response, the workability concerns are about the specification of a list of illnesses or diseases. I have already outlined why that would be unworkable—because it is often a combination of illnesses, as well as the complications of those illnesses, that are interacting, rather than there being just one. I referred earlier to why it would be extremely difficult. I have been looking at the specifics of the amendment, but to do what it says would create more ambiguity than there is currently. In reality, my response is covering our concerns; where I do not make a comment, there are no workability concerns.

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[Lord Pannick (CB)]

I suggest to the Minister that the answer to the noble Lord, Lord Harper, is very simple. An unfortunate person may have more than one inevitably progressive illness or disease, each of which will lead to their death within six months. It is a standard principle of statutory interpretation that the singular includes the plural.

[Lord Moylan (Con)]

May I comment before the Minister sits down? I would hesitate to intervene on the noble Lord, Lord Pannick, because that would be quite correctly stopped by the Whips, but what he is saying is not to the point. If someone has one fatal illness that will kill them at some time in the future, such as a certain form of cancer, they may of course have another illness, say heart disease—I am not a medical person—that could equally see them off at some point in the future. Of course, that will be included in the scope—we entirely understand that.

That is not quite what the Minister is saying. She is saying that one might have a combination of circumstances, each of which might be non-fatal in itself, but that in combination they might result in a terminal diagnosis within six months. If one is frail—again, I am not a medical person—one might have pneumonia combined with certain other conditions, such that the combination could be very threatening and might lead to death within six months, but none of those instances would be fatal in itself. That seems to be what the Minister is saying, but it is not what the Bill says. There has to be an identifiable—

[Lord in Waiting/Government Whip (Lord Katz) (Lab)]

I am not entirely clear whether this is an intervention or a speech. If it is an intervention, it should be clearer and briefer than that, and have an actual question. Please come to the point.

[Lord Moylan (Con)]

This has exposed something that has never been mentioned in relation to the Bill before, or in the whole of our debate on terminal illness. It is a matter of crucial importance. I know the Minister wants to dodge it, but it seems that the Government’s interpretation of Clause 2(1) is very different from what it appears to say in plain language.

[Lord Falconer of Thoroton (Lab)]

I pay tribute to the speeches of the noble Lords, Lord Farmer, Lord Shinkwin and Lord Shamash, all of whom referred to distressing personal circumstances. The Committee is grateful that people are willing to talk about these issues in this very difficult debate.

This group of amendments concerns the definition of terminal illness. As people have just identified, the definition of a person being terminally ill to satisfy the requirements of the Bill is that

“the person has an inevitably progressive illness or disease which cannot be reversed by treatment, and … the person’s death in consequence of that illness or disease can reasonably be expected within six months”.

I will pick up on four points that came out of the debate. First, to deal with the point raised by the noble Lord, Lord Moylan, the words “inevitably” and “progressive” plainly limit the words “illness or disease”, so the illness or disease has to be both inevitable and progressive.

Secondly, to deal with the very important point raised by the Baroness, Lady Finlay of Llandaff, frailty is plainly not within that definition. Frailty, old age or something similar would not satisfy the requirements of

“an inevitably progressive illness or disease”.

That specific point was addressed in the Commons, where the initial draft of the Bill had the words

“inevitably progressive illness, disease or medical condition”.

The words “medical condition” were removed to deal with that specific point. The words

“inevitably progressive illness or disease which cannot be reversed by treatment”

deal with the sort of example given by the noble Baroness, Lady Coffey, and other noble Lords. There will be illnesses or diseases, such as type 1 diabetes or HIV/AIDS, where there is a traditional and accepted treatment which will effectively reverse the effect of the condition. It will not get rid of it completely. You still may have HIV or be a type 1 diabetic, but the effect of the condition is reversed. The intention behind putting in the word “reversed” was to deal with those.

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[Lord Moylan (Con)]

My Lords, I have Amendment 235 in this group and I shall speak briefly to it.

I shall probably be mocked for naivety. We have had some 30 years of the Mental Capacity Act. The concept of capacity has been developed in great detail, in a very specialist way. As my noble friend Lord Sandhurst said, the lawyers understand it but perhaps others do not. I am sure that he meant to say that the psychiatrists understand it too, because they have to work with it regularly. However, he is right that ordinary people do not have to engage very much with the Mental Capacity Act. I am one of those ordinary people. I bring no expertise as a lawyer or as a psychiatrist in relation to the Mental Capacity Act. I am simply thinking in this amendment of how ordinary people would regard it if they saw people who were suffering with learning disabilities, autism or mental disorders being led into assisted dying, opting for assisted dying and having that facilitated.

I have no doubt that there is some poll commissioned by Dignity in Dying which says that they would widely applaud it and that it would be a very popular thing, but I do not believe that it is true when actual cases are presented to people and they see them happening. I think that they would say that it is simply wrong that people who have these conditions should be able to access assisted dying. So my Amendment 235 takes the conditions that are specified in Clause 22: learning disability, mental disorder, autism or experiencing substantial difficulty in understanding the processes or information that is relevant. In Clause 22, we say to these people, “We’re going to help you with an independent advocate”. My Amendment 235 says that those people will not be admissible to the process, and I do it by saying that any preliminary declaration they make will be void. Under the terms of the Bill, they will not be able to proceed further.

That is what a large number of ordinary people would expect. They would want us to protect them and the best way of protecting them is to say no. I know that this offends the notion of autonomy held by the noble and learned Lord, Lord Falconer, which he is trying to adjust for these people. It might strike those who spend their lives working at the concept of capacity as being rather naive and backward of me. However, I think that it is what most people want and the safest course. If the Bill is to be implemented, it can be amended in the future if people want, but at this stage it is by far the safest course.

So I recommend Amendment 235, which would terminate this debate by making it impossible for people with those conditions to proceed. Consequently, Clause 22 becomes unnecessary. That is why I have tabled the Clause 22 stand part notice: not because I have an objection to Clause 22 in some complex way but simply because it becomes unnecessary in the Bill. It is otiose.

[Lord Harper (Con)]

My Lords, I will make a few points. The first is in response to the perfectly fair point from the noble Lord, Lord Markham, at the beginning about the difference between this debate and the earlier debate we had. I think there is a very clear distinction. The earlier debate was a very wide-ranging one about capacity. Because of that debate, we now have some very specific amendments to look at, which seek to tackle some of the issues that were thrown up in that debate. The noble Lord, Lord Deben, set out why this is important: the practitioners in this area—the professionals of various types who will be involved in implementing this regime if the Bill becomes law—have been saying publicly, as well as to us specifically, that they want clarity about decision-making, so that they are clear about the legal framework that applies to them and the decision-making regime. That is very important.

I will not speak to all the amendments in the group; I will focus on a couple of points. We have already talked about the capacity issues around people with deprivation of liberty orders. The noble and learned Lord, Lord Falconer, spoke about that debate and the fact that he has—rightly—written to noble Lords setting out his intention to bring forward those amendments on Report. We have not yet seen the detail of those. I have a couple of questions, if he is able to furnish us with that information. I know he said that he was in the process of talking to officials and lawyers about that, but can he give us an indication about whether the protections he is looking at will be something like a yellow flag or a red flag? In other words, would there be a prohibition on someone who has recently been under a deprivation of liberty order so that they would not be able to qualify under the Bill? Also, can he give us confirmation that we would actually have the protections in the Bill, or would they all be left to codes of practice or guidance? Without having done the detailed drafting, if he could give us an indication of his direction of travel, that would be very helpful.

A number of noble Lords have pointed out that there is some confusion. I think that both the noble and learned Lord and the Chief Medical Officer have both said on occasion that there is a sliding scale of capacity in the Mental Capacity Act and that there has to be a higher level of decision-making capacity for more important decisions. I think Chris Whitty had to row back from that in a letter that he sent, as my noble friend Lady Berridge said. So can the noble and learned Lord set out his understanding of the position under the MCA for these sorts of decisions?

Legal experts have asserted that it is factually incorrect in relation to the Mental Capacity Act. Alex Ruck Keene KC, whom my noble friend Lord Sandhurst mentioned as being part of the CLADD group, has confirmed that, while common law may once have suggested a sliding scale, the MCA itself contains no such requirement. Indeed, that is one of the things that the amendment that they have drafted deals with. Even if there is some case law on some MCA decisions that indicates a sliding scale, there cannot be any case law that is relevant to these decisions, because it has not previously been possible for decisions about assisted suicide to have been lawfully taken. There is no case law that specifically pertains to this gravity of decision. It would be helpful to understand what the noble and learned Lord thinks is the position.

I think this is a question that the Minister is capable or answering—or, rather, able to answer—without straying into making a policy decision. Sorry, I changed my word—I was not trying to imply something about her competence at making the thing; it was more about whether she should or should not. What is the Government’s understanding of the MCA, given that the Chief Medical Officer set out one thing in oral evidence and then corrected it? It would be helpful to know what the Government’s definitive view is on this issue of whether there is or is not a sliding scale. That is a factual question that does not go to an opinion about this legislation. It would be helpful for us to know what it is.

I have a final question in this area, and then I will make one final point. One of the things that Amendment 115 is also trying to deal with is that under the Mental Capacity Act there is a support principle that effectively becomes a duty to assist. It mandates that:

“A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success”.


The danger is that the MCA was designed to help people make decisions about things such as finances, care and housing, where support is plainly benevolent. Applying the same duty to a decision to end one’s life is qualitatively different—the noble Viscount, Lord Colville, mentioned the point about how oppressive it can be if you are repeatedly asked whether you want something with this type of decision—and therefore I do not think it is appropriate. I would be interested to know whether the noble and learned Lord accepts that Section 1(3) of the MCA is effectively a statutory duty for doctors to support patients in making this decision, and, if so, whether that balance is accurate.

My final point, for a couple of reasons, is on Amendment 119 in the names of my friends, the noble Baronesses, Lady Grey-Thompson and Lady Hollins, which deals with the mental capacity assessments for people with learning disabilities. The noble Baronesses and the right reverend Prelate the Bishop of Newcastle on behalf of her colleague, the right reverend Prelate the Bishop of Lincoln, powerfully set out their concerns about whether the MCA properly tests capacity for people with learning disabilities making an irreversible decision of this kind. They set out the concerns very well, so I will not repeat them.

I emphasise one danger I can see, which is a point that one or two of them made and that my noble friend Lord Shinkwin made in his earlier contribution, about expectations. We know, sadly, that a number of professionals involved in delivering healthcare have expectations about people with learning disabilities that are not what we would expect. We should all have very high expectations of the quality of life that people with learning disabilities can have. But, just to pick one example, we know how many people with learning disabilities were treated during the Covid pandemic, when many of them were given “do not resuscitate” orders without their consent because medical professionals had taken a view about their quality of life without asking them.

I am afraid I am not prepared to just leave it to medical professionals and their professional expertise to properly safeguard those people with learning disabilities. I think we know enough from experience to know that we should properly protect people with learning disabilities, recognising that they often have capacity and are able to make their own decisions, but that they need extra protection to make sure that those decisions are the right ones. If we do not do that, knowing what we know, we will be failing them.

Amendment 119 is a very valuable one and commends itself to your Lordships’ House. It would do something that I have said on previous occasions is our job: to look out for those without voices, who are more vulnerable and who need our protection. That is not a duty that we should take lightly; it is one that we all have, and this amendment means we would be fulfilling that duty in a very clear and powerful way.