Terminally Ill Adults (End of Life) Bill

Lord Pannick Excerpts

Friday 20th March 2026 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I am most grateful to the noble Baroness, Lady Smith of Llanfaes, for her excellent tour de force on the constitutional issues facing the Senedd in the face of Westminster, particularly as we move into elections. I will make a few background comments, much more from my own professional angle in Wales.

We must not forget that there is a long history of health and social inequality in areas of Wales, with rurality creating many problems. My colleagues in palliative medicine across palliative care in Wales have described end-of-life care in Wales as being at breaking point, because the demands of the terminally ill Bill risk drawing away funding from a sector that sorely needs it. We have seen bed closures in Wales, which have been quite tragic. There simply do not seem to be the resources to deliver assisted suicide in Wales.

The Welsh Cabinet Secretary for Health and Social Care, Jeremy Miles MS, has admitted that ensuring the availability of Welsh-speaking staff would be challenging, but people find it much more difficult to communicate in a language that is not their first language, and it is much harder to ensure understanding, detect coercion and detect difficulties unless you can communicate in your own language. I know we are coming on to interpreters later, but I remind the Committee that Welsh and English have equal standing in Wales.

It is unfortunate that the amendment in the other place was removed because, actually, the Government’s impact assessment indicates that two in three older people in Wales struggle to make suitable appointments or to communicate with their GP, for many reasons. That is not because of a problem with the GPs; it is a problem of rurality, access, recruitment and resources.

There is also a major concern that the Senedd’s Health and Social Care Committee detected. It warned that the lack of a dedicated voluntary assisted dying commissioner for Wales would risk the postholder, as the Bill stands,

“being less familiar with the operation and impact of the Act in Wales”,

with a further risk of inequity as a result. This goes to the tension between health and justice in terms of the route.

My Amendment 764, which I am delighted that the noble Baroness, Lady Coffey, has co-signed, respects the devolved competence of Wales and would remove a sweeping Henry VIII power that the Delegated Powers and Regulatory Reform Committee, on which I serve, has objected to as “highly inappropriate”. Both Clauses 41 and 42 provide for the regulation of voluntary assisted dying services—health services provided for, or in connection with, assisted dying—in England and Wales respectively. I will now focus on Wales.

The Committee’s 32nd report expressed particular concern that

“the powers can provide for anything that an Act of Parliament can without the scrutiny that an Act of Parliament would receive”.

It went on to discuss some of the things that such a power could be used for that might evade proper parliamentary scrutiny. The follow-up 49th report again expressed

“‘particular concern’ that ‘the powers can provide for anything that an Act of Parliament can without the scrutiny’”

because

“allowing a power to provide for anything that an Act of Parliament can do makes it unknowably broad, even where there are express limitations on its exercise”.

It described this as

“a fundamentally flawed approach to delegated powers”.

The report continued:

“the exercise of delegated powers is subject to significantly less effective scrutiny than a Bill; little if any time is devoted to line-by-line scrutiny, statutory instruments are unamendable, and their rejection is exceptionally rare”—

as your Lordships know. Such wording as we have seen in this clause appears only in two Acts of Parliament: the European Union (Withdrawal) Act 2018 and the European Union (Future Relationship) Act 2020—basically, the Brexit changes.

On the day of the Senedd vote, the noble and learned Lord, Lord Falconer, wrote a letter, as already referred to, which was copied to Members of the Senedd and implied that, without legislative consent from the Senedd, a person in Wales eligible under the Act could legally access an assisted death only through a private provider or by travelling to England. He went on to state that he would seek to remove Clause 42 from the Bill—the whole of the clause.

Additionally, I suggest removing Clause 42(3), which my amendment would do, because the Bill does not state that Welsh Ministers must be consulted if the Secretary of State makes regulations about the provision of voluntary assisted dying services in Wales, nor the limits on the powers of the Secretary of State in relation to Wales. This could override the Sewel convention and impose aspects of such provision on Wales, hence my very short but crucial amendment.

[Lord Pannick (CB)]

My Lords, it is a great pleasure to see the noble and learned Baroness, Lady Prentis of Banbury, back in her place. She has been very much missed, and I hope this is the first stage on the road to full recovery. She, like me, may have a feeling of Groundhog Day because we have made lamentably slow progress on the Bill since she was last with us. We are on day 12 in Committee and we are still on Clause 5 of 59.

As the noble Baroness, Lady Coffey, mentioned, she began our Committee proceedings on 14 November when she moved the first of her 111 amendments in relation to Wales, and here we are again. I say simply to the Committee that of course the Bill should apply to Wales. The Bill seeks to create an exception to the prohibition on assisted suicide and that is an aspect of the criminal law of England and Wales. We all agree that criminal justice is a matter reserved to Westminster. It would be bizarre were this House or Parliament to approve the Bill but not approve it in relation to Wales. There is simply no sensible reason why people living in Wales should be denied the same options as people living across the border in England.

I listened carefully to what the noble Baroness, Lady Smith, said, and she suggested that there has been some parliamentary mischief, and that the people of Wales have not been listened to. But it is the case that the people of Wales have a number of representatives in the House of Commons. My understanding is that they all voted for the Bill.

[Lord Stevens of Birmingham (CB)]

Most of the amendments in this group relate to Wales, but some of them also relate to Scotland. Notwithstanding the noble Lord’s sensation of Groundhog Day, there has been an important development since we met last Friday, which is that the Scottish Parliament, by a decisive majority of 69 to 57, has chosen against assisted dying. In that context, therefore, a number of the provisions in the Bill need a significant rethink; in particular, references to Scotland in Clause 57(2) and (3), which would extend the provisions to Scotland, surely should no longer apply.

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[Lord Harper]

I recognise the noble Baroness’s view, but the noble Lord, Lord Pannick, asked why we should not just go ahead and legislate for Wales. The point is that the Welsh Senedd has debated this matter, which is a perfectly good reason for us not to proceed without its consent. I will come on to some of the amendments tabled by the noble Baroness in a moment.

[Lord Pannick (CB)]

The Senedd has given its consent —that is what the noble Lord seems to be ignoring. Why should this Parliament not proceed to deal with what we all agree is a reserved matter?

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[Lord Pannick (CB)]

I suggest to the noble Lord that, if we got to Report and if we did not take so long on these issues now, we would get answers, because that is the purpose of Report. I know very well why the noble Lord is reluctant for us to get to Report: because the result would be exactly what happened on Wednesday night, when we debated and decided on the decriminalisation of women who had late-term abortions. There would be lots of talk and passionate speeches, but, at the end of the day, the House would vote in favour of a compassionate approach to the issues.

[Lord Harper (Con)]

I will be very brief in my response to that because of the time. That has nothing to do with this issue; this is a completely separate issue. Deciding on assisted suicide is not the same as allowing abortion to term without any legal consequences, which is an extreme provision supported by only 1% of the British public—but I accept that Parliament made a different decision. Those two issues are not connected in any way, so that issue is not relevant to this debate. We raise these issues—real concerns about how this would operate in practice—but we are still waiting to hear specific answers from the sponsor of the Bill. If we had answers earlier, we might make faster progress.

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[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.