Terminally Ill Adults (End of Life) Bill

Lord Wolfson of Tredegar Excerpts

Friday 20th March 2026 Lords Chamber

[Lord Gove (Con)]

I had concluded my remarks but I am grateful to the noble Lord for raising this point. Precision medicine, and the advances that it potentially holds for all of us, is a wonderful potential breakthrough, but changes not just to the legislation but to the regulations governing it will be brought forward by the Government. Any concerns that the devolved legislatures have about the operation of them will be addressed by government means—by the Cabinet Office or any other Minister who is responsible for intergovernmental relations.

We had a situation in Wales where the Minister responsible was operating on the basis of assurances that he had been given by the sponsors of this Bill relating to Clause 42. It may well be that the sponsors can clarify what was meant; why it was that Jeremy Miles believed that if a legislative consent Motion had been denied, we would have legal assisted suicide—assisted dying—in Wales without the capacity of a Welsh Minister to determine the future of the NHS as they wished. Perhaps that can be cleared up.

We cannot have a recurrence of that situation, where we are having to clear it up here, having already had the legislative consent Motion, and the relevant Minister having told other Members of the Senedd that the only reason they should back that Motion was because of the fear he had of the effective privatisation of killing in Wales. That is why we must have government legislation, rather than proceeding with a Private Member’s Bill, which is clearly inadequate when we are dealing with the future of the NHS, for the people not just of Wales but the entire United Kingdom.

[Lord Wolfson of Tredegar (Con)]

My Lords, I first take a moment to say from the Front Bench how wonderful it is to see my noble and learned friend Lady Prentis of Banbury—who was here a moment ago.

[Lord Pannick (CB)]

She left when the noble Lord started.

[Lord Wolfson of Tredegar (Con)]

Causation is denied. My noble and learned friend can read it in Hansard, and I spoke to her outside. It is a testament to her dedication that she has been following this on TV. I do not know whether that shows how poor daytime TV normally is, though those of us who were here on Wednesday will remember that your Lordships’ House is very late night TV as well.

I spoke on the amendments when we first touched on this topic in Committee, right at the beginning. As my noble friend Lady Coffey said, those amendments interrelate with what has been discussed today. The Front Bench is focused on the question of making sure that we do not end up with a situation where different citizens and residents in the United Kingdom have substantially different rights in areas as important as this. I listened carefully to what the noble Baroness, Lady Smith of Llanfaes, said about what actually happened in the Senedd. The phrase “voting in the dark” was a stark one, which I think we ought to remember.

On the question of what the Bill actually does, I am reminded of when I studied private international law, where you have something called the characterisation question—something that lawyers often like. It basically goes like this: in order to get the answer you want, you rephrase the question to focus on the bit of the problem which you want to focus on. In this case, you ask the question, “What does this Bill do?” The noble Lords, Lord Pannick and Lord Carlile of Berriew, rightly say, as a matter of form, that the Bill amends the criminal law and therefore is a competence of Westminster. In reality, assisted dying will not be provided by the criminal justice system. In practice, it will be provided by the health service. That is why I listened carefully to what the noble Lord, Lord Stevens of Birmingham, and the noble and learned Lord, Lord Thomas of Cwmgiedd, said: in practice, this is a Bill which touches on health, which is a devolved competence.

That brings me to the wider and more important point. Earlier this week, the noble and learned Lord, Lord Falconer of Thoroton, raised Jersey, Guernsey and the Isle of Man—the Crown dependencies—in the debate on the Crime and Policing Bill. We also learned this week that the Scottish Parliament has chosen not to proceed with the version—and it was a different version —of this Bill proposed there. If this Bill were to receive Royal Assent, we would therefore end up in a position where substantially different rights would exist for different residents and citizens in the United Kingdom.

That raises an important point of principle, on which I would be interested to hear the noble and learned Lord’s view. Does he see it as a success of devolution that, on an issue as significant as this, people living in different parts of the United Kingdom—and for the purposes of this group of amendments, Wales—might have different rights in law, or does he have a potential solution to create a situation where, as close as possible, people have the same or substantially the same rights?

I respectfully ask the Minister to respond on this point as well. Frequently, we have heard from the Front Bench the phrase, “We are neutral”—that the Government are interested only in workability and will look at these issues as and when they arise. However, this is a deep constitutional issue. The Government cannot be neutral on the point of whether they are content in principle that people in England might have different rights on assisted dying from people in Wales. The Government ought to have a stance on that fundamental constitutional position. The Government also ought to have a position on the point raised by my noble friend Lord Deben as to whether, if this Bill were to go through, with palliative care being such an important part of the overall process, they would equalise funding to make sure that residents of Wales have the same access in practice to palliative care as those of us who live in England do.

For those reasons, I look forward to the responses of both the noble and learned Lord and the Minister.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I am grateful for the views that have been expressed today. As usual, I will keep my remarks to those amendments that raise significant legal, technical or operational workability concerns. I very much associate myself from these Benches with the welcome to the noble and learned Baroness, Lady Prentis. We were delighted to see her return to your Lordships’ House and look forward to hearing from her.

I turn first to the amendments tabled by the noble Baroness, Lady Coffey. Taken together, they would restrict eligibility for assisted dying to England only and exclude people resident in Wales, registered with a Welsh GP or who have recently moved across the border. They would remove the powers of Welsh Ministers to issue regulations and guidance and limit the commissioner’s monitoring functions to England. Individually and as a group, the amendments could have complex effects, risk significant unintended consequences and lead to a lack of clarity about eligibility and the effect of the law across the England-Wales border.

Restricting the Bill to England, as we have heard, would also create a divergence in the criminal law of England and Wales. The protections in Clause 32 would not apply in Wales and the Suicide Act 1961 would continue to apply there as it does at present. It would therefore be an offence to take steps in Wales to assist access to an assisted death in England even where lawful under the Bill in England. That would represent a significant divergence in homicide- and suicide-related offences and run counter to the current devolution settlement.

Amendment 887 would remove Clause 57(2) and (3), preventing certain provisions from extending to Scotland and Northern Ireland, including those on approved substances, advertising, and employment protections. This would risk parallel and potentially conflicting regulatory regimes; may allow advertising of services in Scotland and Northern Ireland, contrary to restrictions in England and Wales; and could leave health professionals who, for example, live in Scotland but work in England and Wales without the same employment protections as someone in England.

There are a number of further amendments in this group concerning powers in the Bill relating to the provision of an assisted dying service in Wales; namely, Amendment 765, tabled by the noble Lord, Lord Goodman, Amendment 764, tabled by the noble Baroness, Lady Finlay, and Amendments 742, 743, 844, 903, 905 in the name of the noble Baroness, Lady Smith. I bring to the attention of noble Lords that these amendments may alter or impinge on the devolution settlement. Any such changes would usually be made following consultation across the UK Government and with the Welsh Government to explore the wider implications. Further, the Senedd would be expected to consider material changes that affect devolved competence.

Amendment 762, tabled by the noble Lord, Lord Goodman, would require the Secretary of State to specify which organisations will provide assisted dying services in Wales, within one month of the Act passing. This raises workability concerns as it requires clarity on who provides services before key implementation decisions have been made. This could be an interference with the ability of the Welsh Ministers in the devolution settlement to exercise their powers in a devolved area. As regulations under Clause 42 are made using the affirmative procedure, this amendment would also require parliamentary debates in both Houses within one month of the Bill being enacted.

Amendment 767A, tabled by the noble Baroness, Lady Coffey, appears to seek to limit the power of Welsh Ministers to make regulations related to private services only and would make Welsh Ministers unable to establish a publicly commissioned service. As currently drafted, the Bill leaves this as a decision for Welsh Ministers. This amendment would therefore have devolution impacts and, if passed, the Welsh Government would need to be reconsulted and the consent of the Senedd would need to be sought for this provision.

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

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[Lord Falconer of Thoroton (Lab)]

The Welsh Government would not be able to widen or reduce the eligibility of an individual for assisted dying. A person would not be in breach of the criminal law in Wales only if they complied with every aspect of the safeguards in the Bill. The Welsh Government’s role would not be to determine who qualifies for an assisted death. In the light of those provisions, it would be only how they introduce delivery of it in the Welsh health service.

There were a large number of other interventions, particularly from the noble Lord, Lord Deben. It was completely unclear whether he is in favour of the Welsh health service having the ability to do that. Whatever his view, I make it absolutely clear that it is for the Welsh health service or Welsh Ministers to decide how it is introduced. It must be in accordance with the statute, but it is for them to decide, and that is why we have given them that power.

I shall go on to the third category. This is not a Welsh Ministers issue, but a Secretary of State issue. The noble Baroness, Lady Finlay of Landaff, made the point that he should not have a Henry VIII power as wide as the one given. I see considerable force in what she said. She asked whether I have an answer that says that this is a parallel with the Brexit provisions, which is the only time that this has been done. I do not have an adequate answer in relation to that, so I should go back and think about how I can appropriately limit that power. However, I make it clear that that is not about the Welsh issue but about the width of the power that the Executive should have. I see the force of what the noble Baroness and the Delegated Powers Committee said.

[Lord Wolfson of Tredegar (Con)]

I am not sure that the noble Baroness, Lady Smith, got a complete answer to her very interesting question. I remind the Committee that she asked what the powers of the Welsh Ministers would be in this regard. Of course, the noble and learned Lord is obviously correct when he says that the Welsh Ministers could not say, for example, “If you have nine months to live, we are going to allow you to access the service”, because that would go beyond the scope of the Act and impinge on a criminal law issue, which is the purview of Westminster. What if they were to say, “We will only, as a matter of health service, allow you to access this if you have three months or less to live”? Would that be within their competence, with their health hat and not their criminal law hat on? I wonder whether that was the point behind the question asked by the noble Baroness, Lady Smith. I am not sure she got an answer to that point.

[Lord Falconer of Thoroton (Lab)]

The health service could determine who it is going to make it available to free, but it could not prevent other people—for example, private providers—having different provisions in relation to it.

The next category of amendments was in relation to removing Scotland. I gave an answer to the noble Lord, Lord Stevens, in relation to that in the course of the debate.

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[Lord Jackson of Peterborough (Con)]

My Lords, I shall touch briefly on two points prompted by both the noble Baroness, Lady Finlay of Llandaff, and my noble friend Lord Blencathra. In a sense they are a challenge to the sponsor, the noble and learned Lord. I think I am right in saying that he was a lot more definitive in his language in the Committee proceedings last week on 13 March about the need for the independent advocate to be present during discussions with the individual seeking to access the service. His Amendment 549A is more opaque in its language and does not specify that. Given the discussions that we had, particularly last week, about the power imbalance between someone who is less confident, less well-educated—a power imbalance between the decision-maker and the person accessing the service—it is an imperative that the independent advocate attends and is present to challenge some of the assumptions or decisions that are being made.

I want also to consolidate a point raised by my noble friend about training. The noble and learned Lord will know, as he and others have lauded the system in Victoria, Australia, that the training provided around the specific issue of coercion is very limited at tier 1. He has potentially missed an opportunity to focus in on training. If you had an in-person independent advocate and poor training, that would not be great, but you would at least have someone attending. Instead, you have a situation of inadequate training and someone not attending in person. It may be that they can send an email, or do a report, or a telephone call, but that is not the same as being there advocating for that individual.

I invite the noble and learned Lord, the sponsor, to address those specific issues of the opacity of his new amendment. I accept that it has been offered to the Committee in good faith to address some of the concerns and issues raised previously, but there is a specific issue about the wording of his new Amendment 549A and a specific issue of training around coercion, which is very important in this respect.

[Lord Wolfson of Tredegar (Con)]

My Lords, we have focused in this debate on the role of the independent advocate, but of course many of the underlying concerns arise with regard to protections for various vulnerable groups and people in situations that expose them to coercion or abuse. It is clear that the text of the Bill as drafted does not specifically address protections for groups such as those with Down syndrome or those subject to coercion.

In fairness to the noble and learned Lord, Lord Falconer of Thoroton, he could reasonably argue that the drafting of the Bill should be wide enough to encompass all of these groups on a generic basis without specifically referencing them. If the Bill is drafted with too much specificity, almost certainly somebody will be left out and we would have to come back at a later stage. That is presumably why the noble and learned Lord has introduced his regulation-making power in Amendment 549A, which I will come back to in a moment.

That said, I would suggest that it is not enough just to say that the drafting of the Bill is broad and that, therefore, we cannot debate its impact on specific vulnerable groups. I would be interested if the Minister could take time in her response to set out how the Government have taken into account the specific needs of the groups mentioned in the various amendments. That seems to me to be part of the work to deal with the practicalities of implementing the Bill.

How, for example, in practice does a person with Down syndrome who might have both speech and hearing difficulties communicate that they wish to die? How will medical practitioners and independent advocates assess that that person has come to an informed choice that they wish to die? Assessing the true wishes of people in that situation can be exceptionally challenging, and many such people rely on loved ones or carers to interact between themselves and medical professionals. How, therefore, do these family members or carers fit into the architecture of the Bill? How do they fit in, for example, with the independent advocate? What is the relationship between family members, carers and the independent advocate within the system of the Bill? Those are general questions which I hope the Minister will be able to respond to.

There is one specific point I ask the noble and learned Lord to consider which arises from his Amendment 549A, which would introduce a new clause after Clause 22. This point was prompted by a comment made by the noble Baroness, Lady O’Loan. If one looks at subsection (2)(b), the regulations must

“require a specified person to instruct an independent advocate to represent and support a person”

if the section applies. In subsection (2)(b)(ii), it says that it applies if

“the person has not indicated that they do not want an independent advocate”.

I was just comparing that to Clause 20 of the substantive Bill, which deals with the situation of when a person who has made either a first or second declaration wants to cancel the declaration as they have decided they do not want to die. In those situations, the person

“may cancel it by giving oral or written notice of the cancellation (or otherwise indicating their decision to cancel in a manner of communication known to be used by the person)”.

On the face of it, therefore, we are requiring much more from a person—oral or written notice—to cancel if they do not want to die than what is needed if they do not want an independent advocate. If we are going to go down the route of Amendment 549A, instead of saying the person has not indicated they do not want an independent advocate, it really should be that the person has confirmed—by written notice or by some sort of firm confirmation—that they do not want an independent advocate. What does “indicated” mean? It is a very loose word and, I would suggest, a very light test. What is happening here is that a person who would otherwise have an independent advocate to protect them is now not getting one; if that person is not going to get one, then we need more than a mere indication from them that they do not want the protection because, ultimately, this is all about protecting people. The contrast with Clause 20 seems to be somewhat stark, so I look forward to the noble and learned Lord’s response.

[Baroness Watkins of Tavistock (CB)]

I just wanted to stress, particularly for Hansard, that the people we are talking about are ultimately going to die from the illness they have had. Therefore, when the noble Lord has referred to them not wanting to die, he means that they do not want an assisted death.

[Lord Wolfson of Tredegar (Con)]

We all know what we are talking about here, but yes, absolutely.

This all goes back to the fundamental point of the Bill. I am addressing this point because the hypothesis is that the person has less than six months to live but, notwithstanding that, we are making sure that this particular group of people have an independent advocate. My point is simply that, if we are going to go down this road, there needs to be consistency: if they are not going to have an independent advocate, they really need to confirm it rather than merely indicate it. I apologise for my slightly loose language; the noble Baroness was quite right to pick me up on that. I hope the noble and learned Lord will consider my point as to whether “indicating” is actually the right test in subsection (2)(b)(ii) of his proposed new clause.

[Baroness Merron (Lab)]

I am most grateful to noble Lords for their contributions to this debate on independent advocates. I will limit my comments to those amendments on which the Government have major legal, technical or operational workability concerns.

I turn first to Amendments 168, 300 and 553, tabled by the noble Baroness, Lady Grey-Thompson. Without further consequential changes, Amendment 168 would result in an internal inconsistency with the framework currently set out in the Bill, which provides an independent advocate only for certain qualifying persons.

Similar concerns arise with Amendment 300, which seeks to establish a new system of advocates for disabled people. It is important to note—not just in reference to these amendments, which I heard the noble Baroness acknowledge are not quite as she might wish them to be, but in relation to the debate—that the Equality Act 2010 definition of disability is very broad. For example, it includes those with cancer. As a result, most people who are terminally ill for the purposes of the Bill would fall within that definition. That means that the amendment could apply to the majority of those seeking an assisted death.

Amendment 300 would require the independent advocate to confirm that the person has been offered

“all practicable social, medical, and palliative supports which are financially supported”.

However, there is no provision to ensure that the independent advocate would have access to the information needed to confirm this, which could make the amendment unworkable.

Amendment 553 relates to young adults aged 18 to 25. People in this cohort are legally adults, so the requirement for parental or guardian consent and to have an independent advocate may raise Article 8 ECHR issues relating to private and family life. To be lawful, these requirements would need to be objectively and reasonably justified and proportionate.

My noble and learned friend Lord Falconer, the sponsor, tabled Amendments 548A, 549A and 862A to address workability issues with the current drafting of the Bill by clarifying the regulation-making powers and parliamentary procedures in Clause 22. The amendments set out when a qualifying person must be informed about independent advocate support and the circumstances in which that support must be provided.

Amendment 544A, tabled by the noble Lord, Lord McCrea, would create a conflict with Clause 22(3), which sets out the role of the independent advocate in providing support and advocacy to a qualifying person. The amendment would remove the definition of “qualifying person”, which would result in confusion about who is a qualifying person and the role of an independent advocate appointed to assist a person who is not a qualifying person.

Amendment 553B, tabled by the noble Lord, Lord Weir, would place a duty on the commissioner to offer the support of an “independent disability advocate” to a disabled person as defined under Section 6 of the Equality Act 2010. As mentioned previously, given the breadth of the Equality Act definition, this duty would apply to most people seeking an assisted death. The amendment is unclear about the duties, training and qualifications that would be required of them.

Amendments 191 and 195 to 199, tabled by the noble Lord, Lord Frost, and spoken to by the noble Lord, Lord Gove, and the noble Baroness, Lady Lawlor, would require the Secretary of State to establish a scheme of neutral advisers to whom a person must be directed in the situation where a registered medical practitioner is unwilling or unable to conduct a preliminary discussion. The amendments are broad, ambiguously drafted and could give rise to significant workability issues.

Amendment 196 in particular would require neutral adviser organisations to make a number of very broad declarations. For example, under the amendment, a neutral adviser must declare that they do not and will not employ

“any person who has taken part in the provision of assistance for assisted dying”.

This could result in a potentially unworkable duty, as it would require the adviser to make a declaration about current and future conduct. These broad declarations could therefore be practically unworkable and create resourcing challenges by excluding significant parts of the workforce, if interpreted broadly.