Terminally Ill Adults (End of Life) Bill

Lord Wolfson of Tredegar Excerpts

Friday 5th December 2025 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I will be very brief. Having listened to this, I am more and more persuaded that we must have reasons, because there will be no coroner’s inquest. We know that some doctors have misbehaved in the past, but that does not always come out. One needs to have a paper trail so that, if concerns start to arise about Dr X, we can see what Dr Y has been saying, as well as Dr X.

[Lord Wolfson of Tredegar (Con)]

My Lords, I can be extremely brief, because of the confirmation given by the noble and learned Lord and also knowing that the substantive issues of domestic abuse, interpreters and various other matters will be dealt with in their appropriate place.

At the risk of underlining my reputation as a legal geek, I invite the noble and learned Lord’s attention to his Amendment 350, and in particular the Member’s Explanatory Statement. I understand the amendment, but I do not understand the statement. The amendment leaves out from “to” to end of the line and inserts “section 12(4) and (7)”, which are about “sharing of specialists’ opinions”. The Explanatory Statement says:

“This is a drafting change (consequential on subsection (4) being added to clause 12)”.


Now, Clause 12 already has a subsection (4), and the noble and learned Lord’s amendments to Clause 12 are to subsections (5) and (8). I do not know whether the Explanatory Statement has confused me and in fact the change is not consequential on a new subsection (4) being added but just stands in and of itself. It may be that I am confused unnecessarily, but if the noble and learned Lord could just clear up that minor point, I would be grateful.

[Baroness Merron (Lab)]

My Lords, I, too, shall be brief. All but three of the amendments in this group have been tabled by the Bill’s sponsor and, as has been discussed, they make a series of drafting changes to the Bill, including making sure that terms are consistent throughout and removing ambiguity and duplication.

The Government are neutral on all the policy choices reflected in these amendments, as they are on the Bill as a whole, but have as usual provided drafting support to make the Bill legally workable. As a part of the discussion today, it is of course for the sponsor and for Parliament to determine whether any of the amendments that the sponsor has chosen to table have changed the intent of amendments that were debated in the other place.

Amendment 7 in this group, tabled by the noble Baroness, Lady Coffey, seeks to amend Amendment 6 by changing a reference in Clause 1(2)(b) from “a preliminary discussion” to “their first preliminary discussion”. It does not make any wider changes to the Bill to provide for more than one preliminary discussion to take place, so this may lead to uncertainty. As with all amendments that have not had technical input from the Government, noble Lords may wish to note that the current drafting of this amendment may require further consideration to make it fully workable, effective and enforceable.

Amendments 8 and 9, on which I raise no major workability issues, appear to be trying to achieve the same purpose as Amendment 6, tabled by the Bill’s sponsor. But I would note that Amendments 8 and 9 have not had the technical drafting support from officials and therefore may not be fully workable, effective and enforceable.

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[Baroness Coffey (Con)]

I thank the noble and learned Lord for his extensive responses. They reflect that “ensure” and “take reasonable steps” are actually different in law compared with what is expected. I am grateful to him for saying that he will not press his amendments in Committee and that he will allow us the opportunity to meet him and others to discuss some of these issues, where we think the provisions go beyond what might be considered legal drafting. I am slightly concerned that the Government did not reply to one particular aspect, but I will take that up separately with the Minister. But with that, I beg leave to withdraw—

[Lord Wolfson of Tredegar (Con)]

Before my noble friend sits down, I wonder whether the noble and learned Lord might take the opportunity to respond to the point I put to him on confirming the drafting of that amendment. He must have overlooked it.

[Lord Falconer of Thoroton (Lab)]

That is in the notes, but I will write to the noble Lord on that.

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[Lord Mackinlay of Richborough (Con)]

My Lords, too often we have vague legislation that comes out of our Houses of Parliament, with phrases such as “shall have regard to”. I remember that the Speaker’s Counsel examined this at some length and when I was on the Speaker’s Committee on the Electoral Commission he said, in rather easy speak, “It doesn’t really mean much”. The other term that we hear is “reasonable”.

Now, I am sorry, but in Clause 1 we have “ordinarily resident”, so what does that mean? I am rather disappointed that the Bill has seemingly had a lot of investigation and clarification in the other place, but it comes here with that rather vague phrase within it, which has been examined at some length here and is the reason for this multitude of amendments. Is it a common-law or case-law interpretation? The noble Baroness, Lady Finlay, eloquently opened the debate by saying that it was a vague term and offered some case law. In the Barnet case, it was far from clear.

I have come up with five different types of “ordinarily resident” where there are different rules. There is case law: the one that has been mentioned today, as it should be, is the residence tool that is advanced by the Department of Health. That gives us the closest attempt at explaining what “ordinarily resident” means in healthcare, but it is peculiar because its purpose is to keep people away from healthcare if they are not resident, and hence we charge them, rightly, for those services. One wonders whether that operates as effectively as it might but at least it tries to codify what it means, with guidance.

The noble Lord, Lord Carlile, said that that was easy; I have the guidance here, strangely enough. There are 14 pages, which is blissfully short compared with some guidance, but it has in it the golden phrase: “This list is not exhaustive”. I am afraid that that, in itself, is not that clear, but at least it attempts to be. The legislation before us would restrict the availability of assisted dying to England and Wales, so I support what my noble friend Lord Lansley said about the UK being mentioned in the residency tool, so why not keep that concurrency in considering whether people are validly able to access secondary care?

Then there is the availability of DWP benefits, which are restricted in a wholly different legislative way. If people who are fully domiciled but are away from the country fairly briefly return to it, they would face another mountain of rules to be able to claim universal credit, for instance. That is a whole new raft of interpretation about what “ordinarily resident” is.

Voting is a whole different ball game; that came to light most graphically in the 2014 Scottish referendum on independence. Your Lordships may have noticed that my name is Mackinlay, which one would think had some Scottish connotation, but that is long gone in the mists of time, and I had no part in that vote. However, there could be a family who have had generations of attachment to Scotland, which, merely by dint of living in England for a short period, would have disqualified them from having a say in that rather extensive constitutional referendum; whereas had anybody in England decided to go and live in Scotland for the briefest of periods, within a short time they would have gained the qualification to take part in that referendum.

In election law, we have a whole new raft of interpretation as to what “ordinarily resident” is. We see that in live action quite regularly, whenever there is a parliamentary by-election. Parties seem to aim the finger at other parties and say, “Your candidate has lived here for only five minutes; he is renting his auntie’s flat and is not properly resident”. So even in electoral law, there is complication, but if we are really looking for complication, that would be in tax law.

I support my noble friend Lady Coffey’s attempts to assist us by adding “domicile” into the interpretation, a position that the noble Lord, Lord Pannick, does not seem to agree with, saying that it is infinitely complex. If we look at tax, I am afraid that the whole issue of “ordinarily resident” is the stuff of true complication. There was an attempt to codify it in the Finance Act 2013, where we introduced the statutory residence basis, and even that is not without complication. I should know, because I have exactly such a case on my desk professionally, as a chartered accountant, at the moment: HMRC is trying to claim that somebody who has been out of the country for 10 years has suddenly reacquired UK ordinarily resident status and hence tax status.

We therefore have conflicts across those five different interpretations, and it all depends on whether the state is trying to deny money, such as DWP benefits; deny healthcare, such as by qualification for secondary care only; or trying to get someone into the UK as resident because the state will then be able to claim a lot more tax from them. I am afraid that I have to express to the noble and learned Lord, Lord Falconer, my gross disappointment that we have had an hour and a half of debate on this legislation about one concept of what “ordinarily resident” means. Having listened to a wide-ranging debate by people who have infinitely more experience in the law than I do, we are still all at sea as to what this actually means.

When we come back on Report, we must have a properly defined qualification for assisted dying under this Act, whether that is by a helpful amendment, as proposed by my noble friends Lord Goodman and Lord Frost, which adds a little more to at least determine the qualification, or whether it is properly and very clearly under a case law interpretation, which I think my noble friend Lord Moylan has tried to advance and examine. As it stands at the moment, I am none the wiser, after this expansive debate, as to what that phrase actually means. I would appreciate it if, in his summing up, the noble and learned Lord, Lord Falconer, could say which of those five interpretations is meant by the Bill. I have a sneaking suspicion that it is an attempt to copy the healthcare definition of what “ordinarily resident” means. If that is the case, let us have it explicitly stated in the Bill, so that we at least know what we are talking about.

[Lord Wolfson of Tredegar (Con)]

My noble friend Lord Mackinlay of Richborough is all at sea. Let me try to provide a little tabula in naufragio, as we say.

[Noble Lords]

Oh!

[Lord Wolfson of Tredegar (Con)]

We say that frequently in Liverpool. These amendments all relate to the eligibility of persons accessing assistance under the Bill. Amendment 11 from the noble Baroness, Lady Finlay of Llandaff, seeks to introduce a requirement that a person must permanently reside in England and Wales to be eligible, whereas the Bill currently has a requirement of ordinary residence. Two questions arise from the current definition of eligibility, which I hope the noble and learned Lord, Lord Falconer of Thoroton, will pick up, as he said he would. First, will persons resident in Scotland or Northern Ireland who have moved to England or Wales be able to access assistance under the Bill? Secondly, will UK citizens resident abroad be able to return to the UK early, so to speak, in the event of terminal illness to access assistance during their last six months?

Those questions lead on to Amendment 14 in the name of my noble friend Lord Moylan, to whom I am not proposing to provide any free legal advice, which relates to UK citizens who are pensioners living abroad. The question of access to assistance under the Act is obviously important. It would be helpful to know how the noble and learned Lord expects the eligibility criteria to affect UK citizens who are terminally ill and living abroad. In particular, what steps would they have to take to make use of their rights under the Bill?

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[Lord Wolfson of Tredegar (Con)]

My noble friend is absolutely right; on that point they do change the policy intention. I am grateful. I would welcome the thoughts of the noble and learned Lord, Lord Falconer of Thoroton, on that.

Finally, in the absence of my noble friend Lord Howe, I have been asked on his behalf to formally speak on his Amendments 301A and 305A. In speaking to those amendments, I want to highlight the threshold which is set for determining whether an individual is in England and Wales at the time of the first assessment. I hope the noble and learned Lord will be able to pick up this point.

As the Bill is drafted, the question as to whether somebody is ordinarily resident in England and Wales rests on what is called the

“opinion of the coordinating doctor”.

My concern is that an opinion without any further evidential requirement may be too low a bar, particularly given the need to guard against the risk of what has been called death tourism. In other parts of the Bill, the noble and learned Lord has used the word “satisfied”, and I think we would agree that that entails a higher evidential bar than merely “opinion”—indeed, that is also higher than “believes” or “reasonably believes”. “Satisfied” is a higher standard. When the noble and learned Lord replies, can he use that opportunity to explain why the test here is only “opinion” and not “satisfied”, as that test is used in other parts of the Bill?

[Baroness Merron (Lab)]

My Lords, I thank all noble Lords for their contributions to this debate on the issue of residency and eligibility criteria. As I have already made clear and will now repeat, I will confine my comments to amendments on which the Government have major legal, technical or operational workability concerns.

First, I turn to the amendments which narrow the residence criteria in respect of eligibility for assistance under the Bill. Amendment 11, tabled by the noble Baroness, Lady Finlay, would change the residence criteria for assistance under the Bill from requiring a person to be “ordinarily resident” to “permanently resident”. Unlike “ordinarily resident”, “permanently resident” does not have a set definition in the context of UK immigration law. It is possible that it would be taken as referring only to those who have citizenship or indefinite leave to remain, which is a much narrower scope than the current wording of “ordinarily resident”.

Similarly, Amendments 23, 309, 300A and 306A would restrict access to assisted dying support to British citizens or people with indefinite leave to remain. This may result in migrants on long-term work or study visas who have resided in England and Wales for longer than 12 months being denied access to an assisted death, thereby potentially giving rise to indirect discrimination based on race. These amendments may be subject to challenge under Article 14 of the ECHR when read with Article 8, on the basis that this may amount to unjustified discrimination. This differential treatment would require an objective and reasonable justification.

In addition, under various international agreements, the UK has an obligation not to discriminate against EU, EEA and Swiss nationals on the basis of nationality, although the agreements do not prevent restrictions on the basis of residency. Since these amendments would prevent individuals from those countries from accessing these services on an equal basis to UK citizens in the same circumstances, they are likely to be contrary to the UK’s international obligations under those agreements.

Amendments 11A, 258A, 306B and 449A, tabled by the noble Baroness, Lady Coffey, seek to change the residency requirement from “ordinarily resident” to “domiciled”. These amendments would add complexity and potential uncertainty to the eligibility requirements. “Domiciled” refers to the determination of a person’s permanent home largely for tax purposes, meaning that a person can be domiciled in a place without being resident there. It is not a familiar concept in domestic law outside of taxation, so it is unclear how it would apply in this context. Further elaboration in guidance would be needed to make these amendments workable. It is also unclear what practical impact this change would have when the Bill would still require people to be physically present in England and Wales in respect of the steps under Clauses 8, 10, 11 and 19.

I will next turn to Amendment 14, in the name of the noble Lord, Lord Moylan.