Terminally Ill Adults (End of Life) Bill

Lord Falconer of Thoroton Excerpts

Friday 20th March 2026 Lords Chamber

[Baroness Coffey (Con)]

My Lords, in this group I have tabled 28 amendments and signed another one. Most of them are connected to the fact that I do not believe the Bill should apply to Wales. We had something of a debate on the first day in Committee, but I was conscious at that point that we did not want to spend the entire first day debating Wales and that we would come back to the legal importance of aspects of this Bill in regard to that. I will of course not speak to every single amendment because a lot of them are just on that theme, but it is an important theme.

I am conscious that, since we debated, the Welsh Senedd has voted for the legislative consent Motion. I remind the Committee that at no point was the Welsh Senedd invited to vote on the principle of legislating for assisted dying, because a change in criminal law would not be within its purview. However, in this group, with amendments tabled by other Peers, there is an opportunity for us to consider—

[Lord Falconer of Thoroton (Lab)]

It was asked to vote on the principle of whether this should be dealt with by the Welsh Senedd, because one of the amendments to the Motion for legislative consent was that it believes that

“Wales should have full powers to choose to legislate or not regarding the legality and implementation of assisted dying services, as is the case in Scotland”.

That was beaten by 25 to 13.

[Baroness Coffey (Con)]

The Welsh Senedd’s legislative consent Motion was not about whether it could accept or reject the Bill. People perceived a threat, although I appreciate that this is not what Kim Leadbeater or the noble and learned Lord will have suggested. This perceived threat, explicitly put in a letter by the sponsors of the Bill, was that if the Welsh Senedd rejected the legislative consent Motion, various clauses—particularly Clause 42—would be removed from the Bill, which would effectively remove any involvement of the Welsh Senedd in how the Bill would be put into effect in Wales.

Even then, the Welsh Health Minister voted against that, as did the First Minister of Wales, and they continued to say they felt the Bill was unsafe. I do not want to get into a rehearsal or a repeat of what happened in the Welsh Senedd—but it did vote. Interestingly, the Government have to deal with another issue where the Welsh Senedd voted down a legislative consent Motion on the Crime and Policing Bill, but that is not a debate for today.

Here we are into an important part of the Bill, where the UK Government can override any decisions made by the Welsh Government and the Welsh Senedd. That is particularly singled out in aspects of Clause 42. I have co-signed Amendment 764 tabled by the noble Baroness, Lady Finlay of Llandaff, which seeks to address that by removing certain powers in that regard so that the UK Government cannot determine what happens in Wales. Since the introduction of the Bill a very long time ago, this has evolved into basically a health matter. It is certainly how the Bill’s promoters have tried to shift this. That is why I feel so strongly about it, as I set out on our first day in Committee.

I will turn briefly to some of the amendments we are debating today. Amendment 736 would amend Clause 40, which suggests that guidance “may relate to matters” for Welsh Ministers. Coming from a UK Minister, that is not right. The Welsh Government, working with the Welsh Senedd, should determine that.

The noble Baroness, Lady Smith, has tabled Amendment 844 to effectively shift this to become a decision entirely for the Welsh Senedd. There is certainly merit in considering that, and I am sure she will set that out later. Even further, I strongly support her Amendments 903 and 905, which have been signed by others.

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I strongly believe that this breaks the Sewel convention. This is one area where I genuinely hope the Government can give us a proper answer to a question about what they think, putting aside all the prevarication, and in what way they have provided advice to the sponsors of the Bill about whether the Government believe this is the right or wrong thing to do, in terms of breaking the Sewel convention. I assume by the very fact that this is in the Bill—

[Lord Falconer of Thoroton (Lab)]

My Lords—

[Baroness Coffey (Con)]

Let me just finish my sentence, then of course I will come back to the noble and learned Lord. So far, the UK Government have refused to share any correspondence or to say which of these clauses should be devolved or which should come under a legislative consent Motion. That is why it has been rather unsatisfactory.

[Lord Falconer of Thoroton (Lab)]

The noble Baroness is saying it is a breach of the Sewel convention. The Sewel convention is that if you legislate in a different legislature from that which would be normal—the Senedd, in this case—you need the consent of the Senedd. The Senedd gave its consent in the legislative consent Motion, so perhaps the noble Baroness could explain why it is a breach of the Sewel convention.

[Baroness Coffey (Con)]

It is a breach because I believe a threat was made to Welsh Senedd Members that if they did not vote for the legislative consent Motion, the entire removal of Clause 42 would be put forward in an amendment by the sponsor of the Bill. That is in a letter that was sent by the sponsors of the Bill to the First Minister, then shared with the Senedd Members. I appreciate that the noble and learned Lord may not think it was a threat, but I am suggesting to him that it was perceived as a threat, which then affected the decision of several Senedd Members.

[Lord Falconer of Thoroton (Lab)]

I am totally confused by this speech. The complaint being made by the noble Baroness is that this should be dealt with by Wales. We took the view that if the legislative consent Motion did not go through—that is, the Senedd did not consent to it being dealt with here—it would be dealt with by Wales. The noble Baroness is now complaining that we are complying with the rules of devolution and legislating here, as the Senedd has agreed.

[Baroness Coffey (Con)]

I am conscious that we have probably exchanged views enough. There is a clear breach of the Sewel convention. It is not usual for the UK Parliament to vote on such matters. I do not want to get into further exchanges, but I have spoken to Senedd Members and they believe—I do not want to use an inflammatory word—there was a perceived threat of this being imposed without their say. That is also why, as I repeat, the Health Secretary for Wales and the First Minister of Wales both voted against the legislative consent Motion. That, to me, is extraordinary in itself. I will not go into all the details on that, but it needs to be considered carefully as we continue to debate this group.

As I say, we covered a lot of these issues on day one, so it is not my intention to extend debate. It is useful to switch to other noble Lords who have tabled, in particular, amendments regarding the Government of Wales Act. I am grateful to those Peers who have signed some of my amendments in terms of the shift of power to the Welsh Senedd on this. I beg to move.

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[Lord Stevens of Birmingham (CB)]

The noble Baroness brings me neatly on to the second point I was going to make, which is that the lack of safeguards in Scotland precisely demonstrates the constitutional and practical difficulty of trying to legislate in Scotland while a number of those key safeguards are reserved matters to Westminster. Part of the reason the Royal College of Psychiatrists and the pharmacists came out decisively this week against the Scottish Bill was because it was not able to include enforceable conscience protections for health professionals that would, for example, have enabled them to refuse an instruction from their employer to participate in assisted dying. Instead, the mechanism that was forced, as it were, on the Scottish legislation was a Section 104 order, which would be subject to a future Westminster Government changing their mind.

The Scottish Parliament was being asked to legislate for assisted dying, absent any Scottish safeguards for conscience and dependent on the future decisions of a Westminster Parliament. The noble Baroness neatly illustrates the point that there is a fundamental problem when one part of the United Kingdom seeks to go its own way. It is incapable of getting the necessary protections and that is one of the reasons why the measure was defeated. Amendment 887 in this group, which would withdraw the reference to Scotland from some of the measures, clearly makes sense given that the Scottish Parliament has just decided that it will not go down this path.

[Lord Falconer of Thoroton (Lab)]

The three reasons why it extends to Scotland are so that people cannot advertise in Scotland to England and Wales, so that people in England and Wales get proper protections if they want to use the conscience clause, and so that substances are dealt with by the United Kingdom. That is why Scotland is included. Is the noble Lord saying that he wants those removed if the Bill goes through?

[Lord Stevens of Birmingham (CB)]

Can the noble and learned Lord elaborate on his second reason?

[Lord Falconer of Thoroton (Lab)]

The second reason is that if, for example, you want the protection of employment law, that employment law which extends to the whole of the United Kingdom should protect you in Scotland as much as in England. You should never be prejudiced. That is why it is included.

[Lord Stevens of Birmingham (CB)]

Is the noble and learned Lord suggesting that Scottish health professionals will be travelling south to undertake assisted dying? Is it a sort of Berwick-upon-Tweed provision?

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[Lord Falconer of Thoroton (Lab)]

If you are an English person who has been prejudiced because you say, “I don’t want to be involved”, you should not be prejudiced anywhere in the United Kingdom.

[Lord Stevens of Birmingham (CB)]

It is not so much a matter of prejudice because, as I understand it, this provision was inserted in the House of Commons in the anticipation that the Scottish Parliament was going to have before it a Bill on assisted suicide, which it would at that point have passed. This was trying to do a belt and braces on a Section 104 order which everybody could see was likely to be deficient.

[Lord Falconer of Thoroton (Lab)]

No, that is not right. The reference to Scotland was included to provide protection for people in England and Wales who, under employment law, wanted to exercise the conscience clause. If I am right about that, I am sure the noble Lord would not wish it removed.

[Lord Stevens of Birmingham (CB)]

I would be interested to come back to that on Report when we have had a chance to investigate that point further.

Fundamentally, this shows that there is a great problem, a structural problem, in trying to do these types of big social changes through Private Members’ Bills, be they in Scotland or England. The reason for that is that it requires concurrent action by the Governments of both nations. We have seen time and again that when these sorts of questions have arisen and we have posed these questions, we have been told by the Front Bench, for reasons we all understand, that amendments to try to deal with these problems pose workability concerns. Then we ask, “How would you address those workability concerns?” and answer comes there none, because the Government are officially neutral on the question. Dealing with these sorts of questions cannot be left to Private Members’ Bills when you cannot get to the bottom of the workability concerns or deal with the fact that, in order for the narrowly drawn legislation to work, there are a whole set of other things that have to be in place that only the Government can provide.

I conclude on that point by noting that this past week we have seen a report from the House of Commons Public Accounts Committee, once again on hospice and palliative care. It says:

“There is an urgent need for reform to address the financial challenges that the independent adult hospice sector faces … The Department’s solution—the Modern Service Framework—is in the early stages of development, details are sketchy, and it is at least a year from being introduced. This is not good enough when so many hospices are announcing service cuts”.


The idea that we should legislate when that is the context right now seems to me utterly ridiculous.

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[Lord Deben (Con)]

I am pleased that I gave time for the noble Baroness to talk, given that she thinks all of this is nitpicking. I remind the House that is what she said about the work we are doing. The fact is—

[Lord Falconer of Thoroton (Lab)]

I am in a total muddle about what the noble Lord, Lord Deben, is saying. I think he is trying to say that Wales should decide on implementation. The Bill says:

“The Welsh Ministers may by regulations make provision about voluntary assisted dying services in Wales”.


We are giving the Welsh Ministers that power. Could the noble Lord make it clear that he supports that provision?

[Lord Deben (Con)]

What I am saying is very simple: the proposers of this Bill have not properly taken into account the particularities that the Welsh have put forward so nobly and well by the noble Baroness, Lady Smith. I never hear from the proposers of this Bill any comprehension or understanding that some other people might have contributions to make. That is why we have had no meaningful changes to this Bill. It is a Bill which is opposed either in principle or in practice by everybody who is supposed to carry it through, and it has now caused real trouble in Wales. I am merely asking the proposers of the Bill to give this House some belief that they really are listening and are not treating our conversations as nitpicking.

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[Lord Harper (Con)]

This is the heart of the problem, which was highlighted brilliantly by the noble Lord, Lord Stevens. This issue touches on a reserved matter—the noble Lord is absolutely right that the proposed change to the criminal law is reserved—but delivering the services, if done through the health service, would not be a reserved matter. The Welsh Senedd debated the principle of the issue and decided that it did not want to have assisted suicide in Wales. When it was faced with the issue the other week in relation to the LCM, what it was being told, as I understand it, was that, if it did not consent to this Bill, and if Clause 42 were removed, it would not have the power to legislate on the delivery of the services. However, this Parliament would still proceed to change the criminal law in Wales, thus allowing people to assist other people to take their own lives, but without the Welsh Government or the Senedd having the ability to legislate for those healthcare services. That, I think, is the position and what it found unsatisfactory.

[Lord Falconer of Thoroton (Lab)]

What the Senedd decided was that it would consent to Welsh Ministers being given power, in effect, to legislate on how to introduce it—that is Clause 42. The effect of the LCM is for the Senedd to say—to the extent that it should be a matter for the Senedd to decide on—that it is content that Westminster should deal with it. If the position is that the Senedd should in fact deal with it, then the Senedd could have retained that power. However, it decided, very sensibly, that if the Bill is going through, it should have powers concurrent with that and get them from the same Bill, because then there is no doubt about what the Welsh Ministers have to do.

[Lord Harper (Con)]

Yes, but the problem is that the noble and learned Lord has just confirmed, I think, that whatever the Welsh Senedd said, his intention was that this Parliament would have legislated to change the criminal law in Wales because it is reserved—and that does not give any democratic say to the Welsh Senedd. That is because of the way the devolution settlement has been established, and, as the noble Lord, Lord Stevens, said, that is unsatisfactory. That is why this issue would be better legislated for in a Bill dealt with by the Government that covered all aspects of it: both the change to the criminal law and the way the necessary services would be delivered in the whole of the United Kingdom, rather than just in England.

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[Baroness Merron (Lab)]

I note the comments that the noble Lord has made.

[Lord Falconer of Thoroton (Lab)]

I express my personal pleasure at seeing the noble and learned Baroness, Lady Prentis, back in the House. She was an extremely successful Attorney-General because she was wise and knew the law. I am very glad that she is back here to keep us in order.

On issues in relation to Wales, we have understood throughout the importance of complying scrupulously with the devolution settlement. The people of Wales have to be respected and the devolution settlement has to be respected. On two propositions here, there is no doubt.

First, this is about the criminal law. If a Bill were passed in the Senedd that sought to change the Suicide Act under the existing devolution settlement, it would have no effect because it would not be within the Senedd’s power to do it. That has to be dealt with by this Parliament.

Secondly, and separately, as a matter of practicality, how assisted dying is to be introduced in the health service and the provision of health in Wales is, in practice, a matter for Welsh Ministers. The approach that we have taken is that this Parliament must deal with the criminal law and Welsh Ministers must be left to deal with the decisions about how it is introduced. It may be that that requires an Act of the Senedd. Because of that possibility, we have included in the Bill the power for Welsh Ministers to give the National Health Service in Wales the power to take steps. That power would normally be given by the Senedd, but so that there could be no doubt about that, and so that it would not wait upon the Senedd, we have included it in the Bill.

Constitutionally, we are allowed to include it in this Bill. Even if there was no legislative consent Motion agreeing to it, we could go ahead without the consent Motion. I and the sponsor in the other place have made it clear, specifically and in writing, that we respect the devolution settlement and that if there is no legislative consent Motion in Wales that consents to this Parliament legislating in an area normally dealt with by the Welsh Senedd then we would withdraw those provisions, because we would not be respecting the devolution settlement. From our point of view, we have proceeded with these provisions only once the LCM has been given. That is our position in relation to it.

I shall now deal with the amendments in that context.

[Lord Harper (Con)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

Could I just deal with this? The noble Lord can come back at the end.

I shall deal first with the 28 amendments proposed by the noble Baroness, Lady Coffey, to remove references to Wales. They would mean that this Bill would not apply to Wales and the Welsh Senedd would not have the power to make a change. As the noble Baroness, Lady Smith, said, this would leave Wales completely in limbo. These amendments raise precisely the same principle that was raised in the first group of amendments that we debated in Committee. I am against these amendments. They do not respect the devolution settlement.

The second group of amendments is, effectively, Amendment 844, which was very well introduced with clarity by the noble Baroness, Lady Smith. She, supported by the noble and learned Lord, Lord Thomas, is saying that we should change the devolution settlement so that criminal justice can be dealt with in Wales. I understand the point and the principled position from which it comes as far as the noble Baroness is concerned. Again, I am against that change. This is not the Bill in which to change the Welsh devolution settlement.

[Lord Harper (Con)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

Let me finish.

In my view, the right answer in relation to this is that we respect the devolution settlement, and it is for the United Kingdom Parliament to decide whether the law is changed in England and Wales. It is worth pointing out that 75% of Welsh MPs voted in favour of the Bill at Third Reading in the House of Commons.

[Lord Harper (Con)]

I shall make two linked points. The noble and learned Lord set out clearly the decision that he and the sponsor of the Bill in the Commons made about how to implement it, which was for the Bill to change the criminal law for England and Wales. The alternative way, as set out in the amendment proposed by the noble Baroness, Lady Smith, is not to change the whole devolution settlement but to make a narrow change specifically for offences relating to suicide. When drafting the Bill, did the noble and learned Lord consider changing that aspect of the settlement and giving that power to change the criminal law as regards assisting suicide to the Welsh Senedd? If he did, why did he come up with his conclusion, given that it has this complexity about the constitutional settlement?

[Lord Falconer of Thoroton (Lab)]

Our approach to this has been to respect the devolution settlement, which, for better or for worse, unquestionably leaves criminal justice to this Parliament, not to the Welsh Parliament. I thought that was the substance of the argument that I was making. We should not change the devolution settlement in this Bill. I respect and understand the argument that the noble Baroness, Lady Smith, and the noble and learned Lord, Lord Thomas, are making, but I do not accept it.

[Baroness Smith of Llanfaes (PC)]

Will the noble and learned Lord clarify whether, if the Bill were to pass, the Welsh Government would be able to widen or limit eligibility for the service in Wales?

[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.

[Lord Stevens of Birmingham (CB)]

Perhaps the noble and learned Lord will clarify the answer he gave on Scotland. I think he is saying that even though the Scottish Parliament has decided that assisted dying should not be lawful in Scotland, a Scottish hospice could nevertheless not prevent its employees doing something that would be unlawful in Scotland if they travelled across the border to perform that act in England. Is that the consequence of what he is suggesting?

[Lord Falconer of Thoroton (Lab)]

This was picked up by the noble Baroness, Lady Merron. She focused, rightly, on what would happen in the case of a doctor who lived in Scotland but worked in England. The question was: could they be prejudiced? The answer is no—employment law would apply, and employment law is right across the country. On what is not being done in relation to the Bill, it does not refer to Scotland, because in Scotland they are awaiting the Scottish Bill. It is entirely focused on the protection of people working in England. That is why it is there. It is also focused on advertising coming from Scotland into England. So it is not in any way dependent upon what might happen in Scotland.

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[Lord Harper (Con)]

That is an answer, but a deeply unsatisfactory one. That is exactly what was done when this was set up in the first place. It led to years of disputes, and to constituents living in England being unable to access the health services to which they were legally entitled. They had to have services in Wales that were less good in respect of waiting times. That is a deeply unsatisfactory answer. The consequence will be a situation leading to lots of complicated workability issues on the ground; that is why I flagged it to both the noble and learned Lord and the Minister on day one. If it is not thought through, it will become a practical issue that will have to be resolved, and if it is going to be resolved, it would be better to resolve it now.

[Lord Falconer of Thoroton (Lab)]

I have sympathy with what the noble Lord says. I do not think it is appropriate for that sort of issue to be resolved in a Bill such as this, and it goes far wider than assisted dying.

[Baroness Smith of Llanfaes (PC)]

I thank the noble and learned Lord for giving way. I have one final question of clarity. If the Bill were to pass here, what would happen if the Welsh Ministers, whoever they may be, did not lay the regulations but the Senedd as a whole supported having those services delivered in Wales? What power would the Senedd have to be able to push for an assisted dying service if Welsh Ministers did not lay the regulations?

[Lord Falconer of Thoroton (Lab)]

I have two points. First, we have made it clear in the Bill that there is no obligation on Welsh Ministers to lay the regulations. In England, they must lay the regulations. In Wales, they may do so; they have a discretion because we thought it appropriate that they should have that choice. If they do not exercise that power, my understanding is that it would be open to the Senedd to pass an Act saying that this has to be done. If no such Act were passed, or the Ministers did not decide to exercise their power under the regulation-making power in this Bill, the consequence would be that the National Health Service would not offer assisted dying in Wales.

[Lord Gove (Con)]

I want to clarify absolutely what the noble and learned Lord the promoter of the Bill is saying. I believe he is saying that, if the Bill passes, we could have a situation where assisted dying is legal in Wales but the NHS does not provide any service—that is theoretically possible—it would be a private service that would be available to citizens in Wales but an NHS service that would be provided in England; there would be that distinct difference. I would just like clarity on that.

[Lord Falconer of Thoroton (Lab)]

That is exactly right. That is why we have given the Welsh Ministers the power to do it. It is for them to decide, because it is not for either the UK Parliament or the Secretary of State here to determine it.

[Lord Gove (Con)]

Again, for clarity, if it were the case that Welsh Ministers thought that NHS resources were better devoted to improving palliative care, for example, or to doing something else, if they said that they would not be providing any resources to support assisted dying, then it would be legal but unfunded. It would be a private service in Wales while it was an NHS service in England.

[Lord Falconer of Thoroton (Lab)]

That is right.

[Baroness Coffey (Con)]

My Lords, we have covered quite a range of issues. I had intended for this to be about the decision-making process. The noble Lord, Lord Pannick, referred to Groundhog Day; it has not been Groundhog Day as far as I am concerned. On the very first day, there was an opportunity for the Government to set out a bit more. People have talked about how it would have been better if this was a government Bill. Actually, if the Government had answered a lot more questions, and had not blocked freedom of information requests to understand what is going on between the sponsor of the Bill and some of these devolution issues, we could have had more progress.

I was grateful to the noble Baroness, Lady Smith of Llanfaes, and the noble and learned Lord, Lord Thomas of Cwmgiedd, who agreed on the first day that we would not cover every single issue about Wales. This was done very deliberately, so that we could have a proper, detailed debate about the governance structure applying in this case.

I have already set out that I would be inclined to support many of the amendments tabled by the noble Baroness, Lady Smith, to transfer some of that decision-making. As the noble and learned Lord, Lord Thomas, pointed out, on the issue of smacking, that has already happened. I did not think that it would be that different or that radical for the issue of assisted dying also to be considered a competence to be passed across to the Welsh Senedd and Welsh Government.

The suggestion has been that I am just trying to disrupt this happening in Wales. It is more about the governance, and that is why we have returned to it at this point. I remind people that, on day one, there was an opportunity for the Government to set out matters and also to consider some of the cross-border issues that were referred to.

I also point out to the Committee that it was decided last week that we would finish the debate early. Nobody had spoken to me about moving the group to today. I feel that we could have covered quite a lot of the issues before 6 pm last week, but that was a decision made by the Government Front Bench without consultation. That is why we have ended up where we are and probably the debate has been a bit longer. However, this is still, frankly, an unsettled issue, an uncomfortable issue. I still strongly support that we should consider transferring this to the Welsh Senedd for the future. With that, I beg leave to withdraw my amendment.

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[Baroness Nicholson of Winterbourne (Con)]

This Private Member’s Bill has not been discussed with the mosques in London, nor anywhere else. My suggestions are that we have a meeting, that I bring suitable people with me and that we start to open this up. It is against the faith to commit suicide, so this is very important.

[Lord Falconer of Thoroton (Lab)]

Of course I agree to a meeting and the noble Baroness should bring anybody she thinks appropriate to it.

[Lord Polak (Con)]

My Lords, I will raise 50% of a registered interest: I am 100% deaf in my left ear. The maths works, right? My right ear is quite good, thank God, but it is useful in many aspects of my life when I pretend that I did not hear at all.

I support all the amendments in this group. I was not going to speak, but I am moved to speak to Amendment 171 from the noble Baroness, Lady Nicholson, whom I have known for many years. I pay tribute to her bravery and courage, which has enabled her success in her life of service to vulnerable people, and to my noble friend Lady Fraser for her Amendment 167, which she so eloquently introduced. Her professional work with people who often cannot communicate for themselves is well known.

The point I want to make to people who support the Bill and want to rush it through is that this group of amendments shows the vital importance of the process that we are going through. It is a real disgrace that these people are intent on trying to rush this flawed legislation through without this sort of vital discussion. These amendments may affect one person to whom by accident, by being unable to communicate or hear, the wrong thing happens. The Bill should be, and should work, for every individual. That is why I urge the noble and learned Lord, Lord Falconer, to find a way to include these matters and these important aspects in the Bill.

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For the other amendments in this group, on which I make no comment, any workability concerns are likely to be less significant. As noble Lords are aware, those amendments have not had technical drafting support from officials, so the drafting may not be fully workable, effective or enforceable.

[Lord Falconer of Thoroton (Lab)]

I am very grateful to the noble Baronesses, Lady Hollins and Lady Nicholson of Winterbourne, for sharing their experiences with us—in the case of the noble Baroness, Lady Nicholson of Winterbourne, the death of her mother and the circumstances of her mother’s life; and in their case of the noble Baroness, Lady Hollins, the circumstances of her husband’s later illness.

These amendments concern ensuring that people with communication difficulties, hearing difficulties or particular cultural pressures are properly able to access assisted death, but also, very much picking up the words of the noble Earl, Lord Effingham, that they should have an assisted death only if it is crystal clear they have understood everything and it is informed consent. I pay tribute to the noble Baroness, Lady Fraser of Craigmaddie, for the intelligent and sensible way she introduced the amendments. I underline that I think everybody in the Committee would be of the view that the two aims are no discrimination and absolute clarity that somebody has agreed. That is the basis upon which I, as a sponsor of the Bill, approach this matter.

I shall deal first with what the current Bill and my amendments make provision for. Clause 5 states:

“If a registered medical practitioner conducts such a preliminary discussion with a person, the practitioner must first ensure the provision of adjustments for language and literacy barriers, including the use of interpreters”.


We take the view that that clause is inadequate because the assurance is not in the communication—by which I mean that you have to ensure there is effective communication, not that you have to ensure there are reasonable adjustments, because who knows whether the reasonable adjustments would work. For that reason, we have tabled Amendment 170 to change the wording in that clause and the parallel clause, Clause 10, to

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

I am sure that is the right way to do it. The focus should be not on ensuring they have to take the steps but on effective communication. I emphasise that because the noble Baroness, Lady Fraser, said those amendments would make it less safe. They would not: they would make it safer. I hope that, having heard what I have to say, the noble Baroness will see that I am trying to achieve what she, quite rightly, is trying to achieve.

The second method by which the noble Baroness rightly seeks to identify how one improves this is ensuring that there is an independent advocate or somebody who has the ability to deal with the communication difficulties of the sort she proposes. That is in her Amendment 546, which would ensure that you are entitled to an independent advocate if you have communication or speech difficulties.

I hope the noble Baroness will be persuaded if she looks at my Amendment 548A, which sets out in detail, by amendment, the circumstances in which an independent advocate has to be made available. I am sorry to go through this at speed, but I have no other options. Who is entitled to an independent advocate? In proposed new subsection (8)(b), it is a person who

“would experience substantial difficulty in … communicating their views, wishes or feelings (whether by talking, using sign language or any other means)”.

So we have sought to do the same thing as her Amendment 546 proposes. I do not invite her to agree or not at the moment, but I very much hope that she looks at that and that she agrees that we are all trying to get to the same end. I completely accept how she framed the issue around people who have the sort of communication differences that she and the noble Lord, Lord Moore of Etchingham, referred to. I am sad not to see him in his place, but no doubt somebody will tell him—he dealt with exactly that sort of issue. So I am with the noble Baroness on this, and I hope she will be satisfied that I have dealt adequately with the position.

On Clause 5, the noble Baroness, Lady Nicholson of Winterbourne, said: make sure that there is an interpreter and, she would add, an amanuensis. I hope she will take the opportunity of looking at my Amendment 548A and see that it would cover people who are deaf. But, again, if she is not satisfied with that, I would be more than happy to meet her—but I hope she will be satisfied with that. That deals with people with communication and hearing difficulties.

I turn to people who are under cultural pressures, religious pressures or pressures from their sexual identity. I completely understand this because I have had the benefit of conversations with the noble Baroness, Lady Nicholson of Winterbourne, who put to me the following example: a woman who is of a religion that would tell you that you would suffer in hell for ever after if you were to have an assisted death, but who is having one because she is being pressured by a man whom she is used to taking orders from, in effect. The question is not whether one makes special provision for that but whether our five layers of safeguard provide protection against that. I believe that having one doctor, a second doctor, the first doctor looking at it again, the panel and the first doctor looking at it again will identify those cases. So I understand what the noble Baroness says and I hope that, with the safeguard provisions that we have put in, we have covered that.

The final group is the one from the noble Baroness, Lady Grey-Thompson. She wants amendments that say that the report the first assessing doctor has to give should be in a language and format that is accessible to the person getting it. I completely agree. The clause makes provision for the Secretary of State to make regulations about all those matters, including that, and I would expect those regulations to deal with that.

[Baroness Berridge (Con)]

The noble and learned Lord has not covered my point.

[Lord Falconer of Thoroton (Lab)]

In relation to the point from the noble Baroness, Lady Berridge, that there should be an absolute exclusion on interpreters under 18, she makes the point that in a case involving, for example, a person under 18 who is the child of somebody going through an assisted death, it would be wholly inappropriate for them to have to deal with that. Again, I do not think we should provide for that in the Bill. It should be dealt with by code of practice. I can envisage circumstances in which somebody who is terminally ill and who does not speak English is comfortable only with their 17 year-old child being the interpreter, so I would be not in favour of an absolute exclusion in those circumstances.

[Baroness Berridge (Con)]

To clarify, is the noble and learned Lord saying that a mandatory exclusion would be in a code of practice? We cannot do that unless it is in the Bill. In relation to the latter point, we will just have to agree to differ on the safeguarding issues in relation to a 17 year-old, but would he be agreeable to 16 being the cut-off and mandatory?

[Lord Falconer of Thoroton (Lab)]

I am not in favour of a mandatory bar on any young person. I expect it to be dealt with in a code of practice. I agree that unless there is a mandatory provision in the Bill it will not be effective, but I am not in favour of that mandatory ban.

[Baroness Fraser of Craigmaddie (Con)]

My Lords, I thank everybody who spoke in the debate. I am very conscious that I stand between noble Lords and their lunch, so I will try to sum up quickly. I agree with the noble and learned Lord that we are all trying to ensure the same thing. I am disappointed by his response pointing to his amendments around the right to an independent advocate, because that is only one small part. My Amendment 167 was really about seeking assistance in the preliminary conversation. The reason for that is understanding that, as my noble friend Lord Shinkwin so eloquently said, it is about thinking about the process from the perspective of the person with the communication issues.

Any of us might find ourselves at any moment in our life, through illness, accident or frailty, in this position. Turning the tables and thinking about how we would feel going through this process and the preliminary conversations is really important.

I want to just quickly give examples of why words really matter and why it is not just about independent advocates. We have the next group after lunch on that. In Scotland we had the “right to speak” legislation that went through after the campaigning of Gordon Aikman, and the Scottish Government put in the right for people to access communication aids and support. The problem in practice is that many people have been able to access aids but not the support; that was the essence of my probing.

The noble Baroness, Lady Hollins, mentioned training. Yes, people are trained to support, and independent advocates might be in that camp, but it tends to be very basic. If you consult the Royal College of Speech and Language Therapists, it is extremely concerned about the number of professional people available to support this group of people. Clarity is vital all the way through the process.

I am conscious as time goes on that I cannot mention everybody. The point is that language being either mediated by someone else, culturally shaped or indirect can cause an issue at any point in the process, and therefore we must have support for people with severe communication issues and other issues. I pay tribute to my noble friend Lady Nicholson. We must surely do all we can to ensure that the decision of a person to end their own life is truly that of the individual and not simply a miscommunication.

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[Lord Falconer of Thoroton (Lab)]

My Lords, I will respond to the sensible invitation of the noble Baroness, Lady Coffey, to give a brief indication as to what my amendments here do. The noble Baroness, Lady Finlay of Llandaff, earlier referred to the Delegated Powers Committee, which made a number of criticisms of the previous Clause 22, in particular that it did not specify the circumstances in which it was mandatory to have an independent advocate and that it left too much to regulations. We introduced two new clauses to deal with that.

The first proposed new clause is found in Amendment 548A. It first requires that anybody carrying out a relevant activity under the Act has to consider whether the person seeking an assisted death requires an independent advocate. The person carrying out the relevant activity is broadly either the first doctor, the second doctor, the provider of assistance to the patient or a member of the panel. If the relevant person decides that the person does need an independent advocate, the person performing the activity under the Act must give the person seeking the assistance

“information about representation and support provided by independent advocates, and … an explanation of the effect of subsection (3)”,

which is that if you need support you are entitled to have an independent advocate, but if you do not want the support you can say no to it. Where the person performing the relevant activity is a doctor, as opposed to the panel, they have to tell the commissioner for assisted dying that this person has been given the information about an independent advocate.

The people who qualify for an independent advocate are not everybody applying for an assisted death, only either

“a person with a mental disorder”

or

“a person who (in the absence of support) would experience substantial difficulty in doing one or more of the following … understanding relevant information … retaining that information … using or weighing that information as part of the process of making relevant decisions, or … communicating their views, wishes or feelings (whether by talking, using sign language or any other means)”,

as we discussed previously.

If an independent advocate is engaged, their job is to “represent and support” somebody seeking assistance in

“understanding the options available … as regards end of life care, or … anything done under this Act, by or in relation to”

the patient. The job is to help to understand, not to be an advocate for any particular cause.

In Amendment 549A there is an additional proposed new clause, which is collateral to the new clause, saying:

“The Secretary of State must by regulations make provision about independent advocates”.


Those regulations basically have to specify the training required for independent advocates, identify who gives them instructions in individual cases and make arrangements for who appoints them. So one now has —this is the point that the Delegated Powers Committee was making—clear circumstances for identifying when an independent advocate should be appointed and on whom the duty arises to make sure it happens.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, following that, I am concerned about whether I have read Amendment 553 in the name of the noble Baroness, Lady Grey-Thompson, correctly. She did say at the end that maybe not all her amendments were perfectly drafted, so I may have misunderstood it.

As I read the amendment—following after the new Clause 22, as my noble and learned friend has just said —it says that any person, not just a qualifying person,

“between age 18 and 25 wishing to receive assistance under the provisions of this Act must receive consent from a parent or guardian and must be accompanied by an independent advocate in addition to parent or guardian”.

I think I am correct in reading that as everybody, not just a qualifying person.

The idea is that someone at the age of 25 still needs a parent or guardian—if they even know where their parents are. Maybe it is partly because I was brought up in the forces, but I know of people who have taken major life and death decisions by the age of 25 while in charge of military units at war. I have known people—in fact, I see some around the Committee—who by the age of 25 have given birth to children, which seems to me an enormous decision that one takes. I, well below that age, took a decision that meant I would never have children. I know of surgeons who before the age of 25 have taken decisions of a life and death magnitude in surgery. There will be people now sitting on the Bishops’ Benches who will know of circumstances in which big decisions are taken by people well below that age.

I am really surprised that we would be writing this into the Bill for those people. Suddenly, at the point when they are terminally ill and dying, we say that, up to the age of 25, they have to locate a parent—whom they may not have seen for years—and, in addition to the parent, have to have an advocate with them. I find that extraordinarily devaluing of ordinary human life and the ability to take decisions.

As I say, I could have misunderstood the amendment. The noble Baroness, Lady Grey-Thompson, said that she may not have drafted it correctly, so it may be that this should apply only to a qualifying person and not all people. I still have my doubts that we really need to treat adults as if they are really young children.

[Baroness Cass (CB)]

My Lords, I will speak to a number of amendments in this group. I can be briefer on some because the noble and learned Lord, Lord Falconer, has copied some of my homework and taken it as his own—which I take to be a good thing.

[Lord Falconer of Thoroton (Lab)]

I apologise for not acknowledging that.

[Baroness Cass (CB)]

Not at all. When I first saw the term “independent advocates” in the Bill, I worried because, in my clinical career as a neurodisability consultant, I have had some very negative experiences of advocates who allegedly were speaking on behalf of people with a range of disabilities but who, we were fairly clear, were not accurately doing so. Some of their behaviours were, frankly, coercive. I know that my noble friend Lady Hollins will have similar experiences and stories to tell.

“Advocate” means different things to different people. Under the Mental Capacity Act, the role is to support people to have capacity, often in the context of the need to make decisions on life-saving treatments. That is clearly not what we are talking about here.

My amendment to Clause 22(4)(b)—which might now be academic, as the clause is to disappear—tries to frame it as people having difficulty accessing information about decisions they need to make for the purposes of requesting assistance and communicating relevant matters. It narrows it down to a communication problem, in the widest sense of the word.

I am slightly concerned that Amendment 548A, from the noble and learned Lord, Lord Falconer, includes “retaining that information” and

“using or weighing that information”

as part of the process. It is very hard, if someone is not retaining information, for anyone to help them to do so; people who are suffering from dementia or memory loss would otherwise be able to be facilitated to remember things, which they cannot possibly be. If somebody does not have capacity, it is hard to see how an independent advocate can facilitate them to have that. That is certainly not what we want them to do, so I am slightly concerned about that line in the new clause.

As for what that independent advocate should do, the noble and learned Lord, Lord Falconer, and I are on the same page, in that it should very much be about facilitating the effective participation of the qualifying person in relation to the provisions of the Act, where their communication needs would otherwise impede such participation. It is about acting to support communication—both understanding and communicating—but not deciding, representing or driving a particular view.

The noble Lord, Lord Sandhurst, who is not able to be here today, and I have put our names to an amendment that seeks that the independent advocate should not be a relative, carer or someone with professional responsibility, for obvious reasons, because, de facto, the individual should be independent and should have had training. Within that training, it is important that they are able to recognise coercion, domestic violence and many of the other issues that we have recurrently discussed in this Committee.

In summary, certainly, my amendments on the role of the independent advocate are subsumed in the new replacement for Clause 22. However, I still have some concerns about who qualifies.

[Lord Weir of Ballyholme (DUP)]

My Lords, I will speak to my Amendment 553B. It is one of a range of amendments I have tabled, which have been put into a number of groups, to try to deal with some of the concerns that have been raised by disabled people and to provide high levels of safeguards. The amendment overlaps with other amendments in this group, as a lot of us are coming from a similar position, irrespective of our broader attitudes towards the Bill as a whole. As such, I am not suggesting that my amendment would cover all aspects.

There is reference in this amendment to one area that we need to get our heads around: how the independent advocate is selected and from where they can be drawn. In the interest of time, I will restrict my remarks purely to my amendment and let others make the case for theirs. My amendment would ensure that there is the availability of an independent disability advocate with “appropriate expertise”—that is as close as I was able to get to defining this—which must be provided by the commissioner for any disabled person within the definition of Section 6 of the Equality Act 2010.

[Lord Falconer of Thoroton (Lab)]

Could the noble Lord indicate which amendment he is talking to?

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I will make no other comments on the other amendments in the group, which 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 Falconer of Thoroton (Lab)]

I am greatly obliged.

I will go through the amendments but, before I start, it is clear, as I said when I introduced my amendment, that the purpose of the independent advocate is as set out in my Amendment 548A. The job of the independent advocate is to

“represent and support a qualifying person in connection with … understanding the options available to the qualifying person as regards end of life care, or … anything done under this Act, by or in relation to the qualifying person”.

Just to answer the question from the noble Baroness, Lady O’Loan, as to what is meant by

“anything done under this Act, by or in relation to the qualifying person”,

the independent advocate can provide help on every aspect of it—for example, assisting in any representations that person wants to make or getting in touch with somebody that the person wants to help them make a decision. It does not envisage assistance in the last act, which is taking the substance, because it is clear in the clause that that needs to be done by the person alone.

The following words,

“anything done under this Act, by or in relation to the qualifying person”,

are used in addition to “understanding the options” because, whenever someone is going through a process, they may well understand it, but they may want help with, for example, preparing documents, filling in forms or working out whom they need further advice from. That is the relationship there. I also echo what the noble Baroness, Lady Cass, said: the purpose of the independent advocate is not to be an independent advocate for assisted dying; it is to help the person going through the process to understand the process and to come to their own decision. Can I move on to—

[Baroness Finlay of Llandaff (CB)]

Can the noble and learned Lord clarify the support? If the lethal drugs are there and the person feels that they cannot take them in the form that they are presented, is the independent advocate to be involved in any alteration of the preparation, such as crushing tablets or heating up substances that might make it easier for them to be swallowed?

[Lord Falconer of Thoroton (Lab)]

Absolutely not. Indeed, the way the Bill is drafted makes it absolutely clear that the independent advocate is there to assist in the process of obtaining the consents and making sure that the person, as they go through that process, understands the whole process. The people to whom the amendment seeks to provide the assistance of an independent advocate are defined specifically as people with a mental disorder under the Mental Health Act or people, as I have gone through already, with particular difficulties understanding, communicating or using or weighing that information.

I will pick up the point that the noble Baroness, Lady Cass, raised: if someone has a difficulty in understanding or retaining information, it cannot be envisaged that they would have a firm and settled view. I broadly share that view—but remember that the independent advocate comes right at the beginning of the process. If there are question marks in people’s minds, people should have an independent advocate. It may very well be that, if someone cannot understand relevant information, they cannot possibly have a clear and settled view. I do not think that they should be deprived of somebody to help them through the process right from beginning. That is why the range is there—because it takes place right from the beginning. I also express gratitude to the noble Baroness, Lady Cass, for broadly supporting the approach that we have taken on the words “independent advocate”.

I will go through the particular changes. First, in her Amendment 168, the noble Baroness, Lady Grey-Thompson, states that everybody should have an independent advocate right from the start. No, I do not think that that is right. An independent advocate should be restricted to those who are qualifying persons, because that is what the role is trying to deal with.

Amendment 300 says there should be an advocate for disabled people. That is also reflected in Amendment 553B, which refers to anybody with a disability under the Equality Act. Again, I say no. The purpose of the independent advocate is to help somebody who has an understanding difficulty or a mental health problem. We have therefore restricted entitlement to an independent advocate to the specific group of people who have an understanding difficulty. I was also struck by the point made by the Minister that very many people who are terminally ill—for example, with cancer—would fall within the category of “a disabled person”. It is not intended that everybody who qualifies needs an independent advocate.

I have dealt with the amendments on the purpose of the independent advocates. I have dealt with the questions raised by the noble Baroness, Lady O’Loan, on what the role will be, including in relation to the word “or”.

A point was made about consulting bodies—I cannot remember who made it; perhaps it was the noble Lord, Lord Jackson—and that we should consult before making regulations under my Amendment 549(2)(b). Section 55 gives the Minister power to consult with anybody he or she thinks appropriate, and that is probably okay in relation to that.

The noble Baroness, Lady Coffey, proposed an amendment that would require that no independent advocate could deal with more than 10 cases in a year. I do not see that that is a sensible or necessary provision. Many people who are qualified as independent advocates will be doing this full-time. I do not see why the number should be restricted to 10.

The noble Lord, Lord Goodman, suggested that the regulations should be subject to an affirmative resolution. I agree. My Amendment 862A does that.

The noble Lord, Lord Gove, spoke to the amendments tabled by the noble Lord, Lord Frost, who we are very happy to see in his place. We had had bad news that he was not available before 6 pm, so we are very glad to see him now. His amendments were ably advocated for by the noble Lord, Lord Gove, and the noble Baroness, Lady Lawlor. I am against the proposal that he is making. The proposal, as I understand it, is that where the registered medical practitioner says that they are not willing to conduct this primary discussion—obviously, the main reason would be because they were against it—we should set up a group of neutral advisers for this specific group, to which you have to be referred for the purpose of getting another Clause 5 conversation.

Noble Lords will recall that the Clause 5 conversation has to be conducted in a way that gives rise to all of the options. The preliminary discussion—the explanation to the person—must not be conducted in isolation, referring only to assisted dying, but must refer to all the options, the prognosis and the treatment. What is being proposed, as I understand it, is that a system of neutral advisers should be set up for when somebody refuses to conduct that consultation so that the person is not sent to somebody who might be biased. Remember, this is taking the person from somebody who refuses to do the preliminary discussion to somebody else. I understand the point, but that seems both unnecessary and inappropriate.

[Baroness Lawlor (Con)]

Say we have a medical practitioner who does not, for the reasons the noble and learned Lord has given, want to discuss this. What is to make sure that the person, the organisation or whatever it is, the vague entity under the Bill, to which the person will then be referred, is not part of a, if you like, mafia of employees—because it does not necessarily have to be a doctor to whom the person is referred—who are in the vanguard of protagonists of assisted dying? This is the concern that that seeks to deal with in a state service.

[Lord Falconer of Thoroton (Lab)]

What I understand the noble Baroness to be saying is that a doctor who will not conduct the conversation because, for example, he or she is against it on conscience grounds, might refer somebody to what she describes as a pro-assisted dying mafia. First, that seems to me to be unlikely. Secondly, the Bill cannot prevent people talking to anybody they like about assisted dying. We have free speech in this country. Thirdly, the Bill provides that before you can have an assisted death, you have to have a Clause 5 conversation, which requires the doctor—legally—to put every option before you. What is being proposed is a network of neutral advisers to ensure that before you get to the second Clause 5 doctor, you have not talked to somebody who might be pro it, who you are not prevented from talking to anyway by the law. No, I am not in favour of it.

[Baroness Grey-Thompson (CB)]

I thank all noble Lords for the debate this afternoon and the noble and learned Lord for explaining his amendments. I think the answer to the problem that we are trying to solve is somewhere in the middle of this group of amendments. I still have a level of concern about whether an individual knows what they are saying yes or no to with the independent advocate and their understanding of the information that they are given. I would be very concerned if it turned into some sort of tick-box compliance in terms of someone’s understanding.

I thank the noble Baroness for her confirmation that, under the Equality Act, someone with cancer or leukaemia would count as being disabled. It was not my original intention for everybody who wanted to enter this process to have somebody independent alongside them.

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[Baroness Merron (Lab)]

My Lords, The Government do not have major workability concerns with Amendments 175 and 384, tabled by the noble Lord, Lord Moylan, whom we are very pleased to see in his place; long may he continue to be there.

I will say a few words about clinical practice, which may be helpful in addressing some of the points raised, including those just now by the noble Earl, Lord Effingham. Most of the questions were really about the Bill and are therefore matters for the sponsor, but I will make a couple of points about clinical practice. It is rare for a clinician to base prognosis on a median life expectancy. In addition, explaining the data used is not common clinical practice. I hope that is helpful to noble Lords.

The issues raised are rightly for noble Lords to consider and decide. Of course, that means that the way the amendments are currently drafted may require further consideration to be fully workable, effective or enforceable.

[Lord Falconer of Thoroton (Lab)]

My Lords, can I share everybody’s genuine pleasure that the noble Lord, Lord Moylan, is here? Can I not congratulate him on telling us about it? I would have done, but he told me he did not want it, so I respect his wishes. I thank my noble friend Lord Rooker for being willing to share his experience of the death of his first wife. I also associate myself with my noble friend Lady Royall; from personal experience, one should not feel that one has got some obligation or is in some way defective if one dies quickly of cancer or takes a particular attitude. We should not be censorious one way or the other as to what attitude people take when confronted with a terminal illness. How would we all react when confronted with it? We probably do not know.

First, we have had a debate about the six months, and I am incredibly unkeen to revisit the six months because I do not think that that was the frame within which the noble Lord, Lord Moylan, tabled his amendment. His amendment is about what is to be told to the patient rather than whether six months is right—I am gratified that the noble Lord, Lord Moylan, is nodding. I will focus on the issue: how should the patient be told? His amendment is in Clause 5, which is about the preliminary discussion. It requires the doctor conducting the preliminary discussion to discuss the person’s diagnosis and prognosis. It requires the doctor to refer to any treatment available to the patient, and the likely effect of the treatment, and it requires them to go through

“all appropriate palliative, hospice or other care”—

it is not just palliative and hospice care; it is other care as well—

“including symptom management and psychological support, and offer to refer them to a registered medical practitioner who specialises in such care for the purpose of further discussion”.

It is a detailed discussion about the prognosis, diagnosis and likely effect of treatment.

I was struck by the speech made by the noble Baroness, Lady Watkins. The idea that you are told you have six months to live, and that is it, is extraordinarily unusual. The idea that this happens is very unlikely; that it could happen in this context seems to me to be extraordinarily unlikely. Noble Lords will be aware that, in Clause 7, there must be a record kept of this conversation. The iniquity that one is trying to deal with seems to me to be unlikely to arise.

Should we be putting into the Bill the specific statistical material that has to be given? If you are relying on a median or an average, do you have to say that you are doing that and what the variations are? No, I am not in favour of that. There is a power for the Secretary of State, by codes of practice or guidance, to give indications as to how it should be dealt with. I trust doctors more than many people in this debate. It would be unhelpful to put in words such as those in the amendment into the Bill, so I am against the amendment.

On a completely separate issue, we have debated the question of the prognosis and the reason for the six months. I strongly adopt the words of the noble Baroness, Lady Noakes, that this is not the view of one person; this is the view of two doctors and a panel of three. This is not just a question of one prognosis and it is over. That is an issue that we dealt with previously. I am delighted that the noble Lord, Lord Moylan, was in a position to move the amendment. I am sorry to say that I do not agree with it.

[Baroness Finlay of Llandaff (CB)]

Does the noble and learned Lord recognise that, if the earlier part of the Bill and this clause had compatible wording over the progress and disease trajectory of that individual patient, that would make it easier for patients to make a decision and much easier for doctors having those conversations, whether it is the first conversation, the assessment or the independent doctor? It would also allow changes in medical science, which happen very rapidly, to mean that people were not stuck with the wording in the Bill. It would allow changes in information giving. So will the noble and learned Lord consider revisiting the word “prognosis” and clarifying it better in the Bill?

[Lord Falconer of Thoroton (Lab)]

I did not quite understand the question, but I think the noble Baroness is going back to her amendments that we discussed previously about how you have to have regard to the progress of the disease. I think she is saying that you have to have the preliminary discussion, the first assessment and then the secondary assessment, and therefore you have time—I see the noble Baroness shaking her head, so perhaps she could raise it with me separately so that I understand it.

[Baroness Finlay of Llandaff (CB)]

I would be delighted to raise it outside the Chamber; it was a little more complicated than those three points.