Terminally Ill Adults (End of Life) Bill

Lord Harper Excerpts

2nd reading
Friday 19th September 2025 Lords Chamber

[Lord Harper (Con)]

My Lords, it is a great pleasure to follow the noble Baroness. At the end of her speech, it was very clear that she should have had no concerns about the contribution she would make to the debate—it was a very powerful speech.

We are all the product of our experiences. One of the most profound and shaping that I had in public life was being shadow Minister and then Minister for disabled people. The reason for that was the opportunity I had over the four years or so in those two roles to meet people of all ages who had thrown in front of them, sometimes over the whole of their life and sometimes as a result of circumstances, challenges and difficulties that they faced doing the things that we all take for granted: living an independent life, working, bringing up a family, contributing to society and making the best of what they had in front of them. Many of those people are profoundly concerned by what the Bill will do to society’s view of people who have challenges thrown in front of them.

I know that is not the intention of the promoters of the Bill, but it does say something fundamental about society’s view of life, particularly life lived by people who have profound challenges. That is why the Bill is not supported by a single organisation in this country that represents disabled people—not a single one—and we should listen to their views and take them very seriously.

The second very powerful argument we have heard in this debate, referred to by the noble Baroness, Lady Fox of Buckley, is the one about choice and autonomy. The reason why that argument fails in this case is that you are taking a decision that impacts only upon yourself and has no consequences for others. The problem is that in delivering rights and choices for those who will be the beneficiaries—if that is the right word—of the Bill, you are effectively taking away choices and opportunities from others. There are competing rights, and when we have competing rights, we always have the most difficult decisions to make, and they are always the most charged political conversations we have.

The second reason why that argument fails is that, for choice to mean anything, it has to be a meaningful choice, and we do not have that in this country. We have some excellent palliative care, but it is not universally available to everybody; and in the Government’s 10-year plan for the NHS, there is no plan and no ambition to make it so, not even at the end of that 10-year period. I am afraid that a choice for assisted suicide without access to good quality palliative care is no choice at all.

My final point is about being clear about what we are doing here. As the noble Baroness, Lady Fox, said, and my noble friend Lady May of Maidenhead said last week, this is about assisted suicide. We are amending the Suicide Act to provide a defence for people taking their life. If the promoters of the Bill and those who support it find plain and clear language uncomfortable, rather than attacking those that use that plain and clear language, as they have done with my noble friend Lady May, they should perhaps reflect upon what it is they wish to do.

Terminally Ill Adults (End of Life) Bill

Lord Harper Excerpts

Committee stage
Friday 14th November 2025 Lords Chamber

As the Delegated Powers Committee has pointed out, there are already extensive Henry VIII powers in the Bill, and it should be an easy matter to draft a new clause that removes all references to Wales in the Bill but grants a power to the Senedd to do its own Bill. Wales wants control of its own death regime and cannot do it since the Bill is nonsensically regarded as a criminal law Bill in Wales. We have the power to give the Senedd the power it needs to determine its own laws on this matter.

[Lord Harper (Con)]

My Lords, I support my noble friend Lady Coffey’s amendments. I will raise two issues, one on the principle of how we are dealing with devolution. I also want to bring to the Committee what I hope is some valuable experience from my time in the House of Commons about the detail of how these services are delivered on the ground, particularly for people who live close to the border. Given that these are life and death issues, the detail of how these services are delivered is very important.

One lesson from the way in which the 1999 devolution settlement was delivered was that there was literally no thinking done about some of the complexity of the cross-border issues. It took the best part of a decade of hard campaigning work to get this right. In the interim, many of my former constituents sadly did not get the life-saving medical treatment that they deserved as residents in England. This is incredibly important. It is an issue that I suspect will be known only by those of us who have had some responsibility for this. I am sure the Minister will be well aware of it and, if she is not, she will be able to ask her officials to dig out all the background and history for the cross-border delivery of healthcare and the protocols that are now in place, because they will be very relevant to how these services are delivered.

In the first part of my remarks, I will touch particularly on the aspect that my noble friend Lord Blencathra raised. This is partly about my fundamental view that I do not think that delivering this legislative outcome through a Private Member’s Bill is very satisfactory. This issue is one of the reasons why. We have a very uncomfortable situation in which we accept that this is devolved in Scotland—and the Scottish Parliament is busy legislating to deliver assisted suicide in Scotland according to how it wants to deliver it.

I personally do not believe that assisted suicide is a healthcare intervention, actually, but it is clear from what Health Ministers have said that they think this will be delivered by the National Health Service. If it is to be delivered by the National Health Service, you would logically expect it to be done, as my noble friend said, in accordance with the devolution framework. But because what is actually happening here is the amendment of the Suicide Act to put in place the ability for people to help someone take their own life and not be caught by the Suicide Act, that effectively makes it a criminal justice matter. That is not devolved, which is why we are having to legislate for England and Wales. I do not think that makes any sense.

It would have been much better if the UK Government had had some sensible conversations at the beginning of this process with the Welsh Government and come to an agreement about how this was going to be dealt with, either—as my noble friend said—by devolving the power to the criminal law in Wales and allowing a fully devolved solution, or by the Welsh Government and Senedd agreeing that we could legislate at Westminster for both the principle and the operational delivery mechanisms on an agreed basis. We have ended up with a very uncomfortable halfway house, which I do not think will be at all satisfactory, where we will be making decisions here for a service being delivered in Wales, not doing it in line with the wishes of those elected by the people of Wales. We are not really having that proper, sensible conversation.

I turn now to the operational issues. I have looked at the Bill, and because it says almost nothing about how this will be delivered in practice, I will flag up a couple of issues. The Bill applies to people ordinarily resident in England and Wales and registered with a GP practice. For those who do not know, my former constituency is the Forest of Dean. One of the complexities if you live in the Forest of Dean is that there are parts of it where you live in England, so will be covered by the law and the NHS in England, but you will be registered with a GP practice either physically located in Wales and governed by Welsh laws or physically in England but part of a wider practice in Wales. That matters because you will get your primary care delivered according to the rules of that practice. Some of my former constituents have primary care delivered according to Welsh rules, even though they are resident in England. People will be familiar with the fact that there are differences there—about whether you pay for prescriptions, for example.

The really important issue, on which the Bill is silent, is that when you receive secondary care—when you are referred to hospital for treatment—it was the case before we put in place the protocols that now exist that my former constituents in England, entitled according to the law to get services in England, were being referred to secondary care in Wales. There, waiting lists were longer and there were not the same provisions about choice. Therefore, those residents of England were not getting the services to which they are entitled. The Bill does not distinguish between whether you are resident in England or Wales.

The concern is that if the health service in England delivers the service in a particular way but Welsh Ministers decide to deliver the service in a different way, with different checks and balances and different professionals delivering that service, it is not clear in the Bill whether someone who lives in England but is registered with a GP practice in Wales would be entitled to the English or the Welsh provisions. Given that this is about life and death situations, that matters. I, for one, am not content to leave it to secondary legislation. The Bill should spell out the rights you have as a resident of England to the services you get, and if you live in Wales the rights should be according to the provisions of the Senedd.

I see Ministers chatting to each other. This matters. If this is not got right, there will be people in England facing life or death situations who do not get the health professionals involved in this. There will be people potentially coming under the ambit of the Bill who get social care. Social care is devolved, so the level you get, the rules about it and the entitlements to it are different in England and Wales. There has been a lot of talk about the necessary provision of psychiatric services. The provision of secondary care—psychiatrists, for example—is devolved, so it will not be the same in England and Wales. Getting this right matters.

The legislation says nothing about delivering services accurately to people based on their residence. At the moment, we have lumped together whether someone is ordinarily resident in England and in Wales; I do not think that that is satisfactory. You should get the services in England that this House and the other place decide are appropriate, and English Ministers—namely, Ministers in the UK Government responsible for the health services in England—decide that. If you live in Wales, you should get the services that Health Ministers in Wales decide you get. We need to make that very clear in the legislation.

My noble friend’s amendments raise some important issues that go to the heart of the legislation. They have not been thought through by the promoter and sponsor of the Bill. Having raised them today, I hope that Ministers will start thinking about them and will come back to the House with amendments themselves. Otherwise, I will put down amendments—and I suspect other noble Lords will, too—to correct this on Report. It is a massive gap, and it will be an issue for residents in England and Wales, particularly those close to the border, who make up one-quarter of the Welsh population. It will be raised by Members of Parliament up and down the border. My experience as a former Member of Parliament is that it is better to get these things right—

[A noble Baroness]

You have made your point.

[Lord Harper (Con)]

I am going to finish very quickly if you do not interrupt me. The time limit is very clear, and I am going to stick to it, but I am finishing my point. I was coming to the end of my point, and that was not necessary. The Government Chief Whip made it clear that these are incredibly important issues, and we will debate them with courtesy and respect. I will treat people whom I do not agree with on this issue with courtesy and respect. As I have not exceeded the time limit, I do not expect to be yelled at. Let me just finish my point and then I will sit down.

My experience—I am going to go over the time limit only because I was interrupted—as a former constituency MP is that it is better to get these things right in advance, when you draft the legislation, and not spend years trying to fix them afterwards.

[Lord Markham (Con)]

My Lords, I am not an expert on delegated powers, so I must admit to a bit of confusion. I hope that either the Minister or the Bill’s sponsor, the noble and learned Lord, Lord Falconer—or maybe both—can help clear this up.

My understanding of what the Bill is trying to do is to enable the Welsh Senedd to make a choice. If the amendments were to go through as drafted, they would deny that choice, because they would rule out people living in Wales from being able to choose whether they have assisted dying, whereas what I think the Bill is trying to do—I hope that can be clarified in the response—is state that the legislation will enable the Welsh Senedd to decide whether and how it wants to implement the Bill. When the Senedd does that, it can take into account the points that the noble Lord, Lord Harper, made about how the two services could sit alongside each other.

If we were to pass this amendment, we would deny the people of Wales that choice. That cuts right across the principles that the noble Lord, Lord Weir, set out when he said that the decision should be taken in Wales. The amendment would mean that the decision was taken here, which would deny the people of Wales that choice.

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[Lord Harper (Con)]

The Minister has said very carefully today and in answer to some Written Questions that there are officials, rightly, working on the legislative drafting of this Bill to make sure that it is workable. It is completely proper for Ministers and officials to be doing that. I want to probe the Minister on a point raised by the noble Baroness, Lady Grey-Thompson. Does she have officials, in her department or elsewhere, who have gone further than that and who are working on implementing the legislation if it were to pass both Houses of Parliament?

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[Lord Falconer of Thoroton (Lab)]

My Lords, I make a declaration of interest: I have an assistant who is funded by Mr Bernard Lewis and who helps me on this Bill. I make a declaration that Dignity in Dying paid for the printing of the material that was circulated to Peers in my name before this process commenced.

I compliment the noble Baroness, Lady Coffey, on the short way that she introduced the important issue. I very much hope that I can put to rest most of the misconceptions that were expressed during this debate.

As everybody agrees, criminal law is not devolved to the Welsh Senedd. Therefore, any change in criminal law has to come from the UK Parliament. You cannot proceed with assisted dying without changing the criminal law. Therefore, the UK Parliament has to provide a legislative change for that.

Healthcare is rightly devolved to the Welsh Ministers and the Senedd. The Bill makes provision in England for Ministers to produce regulations on how assisted dying will be implemented and regulated in England. Clause 42 requires Ministers to produce such regulations. It is wrong, as part of the devolution settlement, to require Welsh Ministers who are responsible for health in Wales to do that. It is for the Welsh Government to decide what provision to make. Unlike Clause 41, which relates to England, Welsh Ministers are given the option to introduce such regulations as they see fit. Those regulations will permit the assisted dying process to be introduced in Wales, in the National Health Service, and for Welsh Ministers and the Welsh Government to provide whatever provision for it in regulations that they see fit.

The noble Lord, Lord Wolfson, asked why we are legislating for England and Wales but not Scotland at the same time. It is because we are doing exactly what the noble Lord, Lord Gove, asked me to do—and I am so glad he did—which is to respect the devolution settlement. Will the noble Lord let me finish? Then I will come back to him.

The way this structure works is that, first, we in this Parliament determine whether the criminal law should be changed. Secondly, the Welsh Government are given the power to introduce regulations. That power should normally be given to Welsh Ministers by an Act of the Senedd. Therefore, a legislative consent Motion has been proffered by the Welsh Government for the Senedd to decide whether it would be willing to give us consent to legislate in an area that would normally be legislated for in the Senedd.

The LCM—legislative consent Motion—in the Welsh Senedd covers the following. I give these details for noble Lords to consider them at their leisure: Clause 40, which gives Welsh Ministers power to issue guidance; Clause 42, which gives Welsh Ministers power to regulate how this is to be introduced in the health service in Wales and with what regulations; Clause 51, which gives the Welsh Government power to talk about and make regulations about the Welsh language; Clause 54, which gives them a general power to make regulations; and Clause 58, which gives the Welsh Ministers and the Welsh Government power to introduce certain of the provisions.

The sponsor in the other place and I have discussed this arrangement with the Welsh Government, and by that I mean Welsh Ministers and Welsh officials. We have done what the Welsh Government would wish us to do to respect devolution. We have taken these powers in the Bill, subject to Parliament, so that there is not a position where, after this Bill is passed, Welsh Ministers lack the power to introduce regulations if they choose to do so.

I have listened to this torrent of points about Wales saying it has not been thought out. I say with suitable humility that we have thought it out and sought to reflect what good devolution practice would require. I do not invite people to come back, but please think about what I have said and consider—

[Lord Harper (Con)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

Hold on. Consider whether it represents the right position.

Can I just deal with two other points? First, the noble Baroness, Lady Smith, in a very clear speech, said maybe one should amend the Bill to give the Welsh Senedd the power to make a decision about the criminal law in relation to assisted dying. It was a point I thought the noble and learned Lord, Lord Thomas of Cwmgiedd, was sort of flirting with. We have not taken that view. We have taken the view that the right way to deal with this is in accordance with the existing devolution settlement.

If the noble Lord, Lord Gove, has not been satisfied with my answer so far, he may continue with his question.

[Lord Falconer of Thoroton (Lab)]

In relation to the noble Lord’s first point, the Legislation, Justice and Constitution Committee’s point about the width of the legislative consent Motion is that it wants the LCM to extend not just to the health provisions but also to those that relate to the change in the criminal law and the safeguards. It argues that those changes in the criminal law should also be subject to it. My view—and it is a view I think shared by the Welsh Government—is that, no, you do not need a legislative consent Motion for the UK Parliament to do that which it is entitled to do, which is to change the criminal law. I give way to the noble Lord, Lord Harper.

[Lord Harper (Con)]

I am very grateful—

[Lord Falconer of Thoroton (Lab)]

Sorry, the noble Lord, Lord Gove, asked a second question which I did not answer.

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[Lord Harper (Con)]

I am grateful to the noble and learned Lord. I have listened very carefully to what he said, and I absolutely accept that he has conducted extensive engagement with Welsh Ministers based, perfectly understandably, on the framework of the Bill as he and the sponsor in the Commons have drafted it.

The noble and learned Lord will know that one of the concerns of many in your Lordships’ House is the extent of Ministers’ powers and the extent to which some of the regulations should be put in the legislation. I am sure, as Committee progresses, we will have those debates. If it ends up being the wish of this Parliament that more of the detail about how the legislation will be implemented is put in primary legislation, how will we do that in a way that satisfies the desires perhaps of this Parliament but does not trespass, given the way he has chosen to set out the framework, over the devolution framework? Therefore, did he consider just devolving the power to the Welsh Senedd to change the criminal law in this narrow case? Then the Senedd, as the noble Baroness said, would have the full power to change the law and implement it. I accept that what he has done makes sense in the way he has drafted the Bill, but if we significantly change the Bill, I think that will cause a real problem with how it is implemented.

[Lord Falconer of Thoroton (Lab)]

I am not sure I understood the question. As far as devolution is concerned, I do not think the question of regulations on the face of the Bill is the right issue. The right issue is who has power to produce those regulations and does that offend against the devolution settlement. If he has a question about there being not enough detail in relation to other areas, I am happy to answer that, but this is not for this group. Those are my submissions.

[Lord Harper (Con)]

Let me ask him the question.

[Noble Lords]

No!

[Noble Lords]

Yes!

[Lord Harper (Con)]

He said he did not really understand my question. If we set out in the Bill some of the details he currently envisages are in regulations and therefore the House decides on them as opposed to them being for Ministers in either the UK Government or the Welsh Government, that will cause a problem for the approach to devolution that he has conducted. I just wondered whether he had thought about that. That was my question, and I am sorry for not expressing it clearly.

[Lord Falconer of Thoroton (Lab)]

I am not sure the noble Lord has quite understood what I have said. It is for the regulations in so far as they deal with the Welsh health service to be delivered by Welsh Ministers, so it is quite inappropriate for us to put them in this Bill.

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[Lord Rook (Lab)]

My Lords, I will keep this brief. I was not going to share this at this point because it is quite personal and because it takes a lot for me to counter the noble Baroness, Lady Andrews, for whom I have huge respect. She was the first person to invite me to the House of Lords for tea, many years ago. I do not doubt that the Mental Capacity Act has been a huge advance in how we deal with these issues.

I accept that the noble and learned Baroness, Lady Butler-Sloss, is probably one of the few people in this place to make judgments in the courts and the Court of Appeal on mental capacity. I suspect that more of us have had to go through the process of helping a loved one through a mental capacity assessment, although I suspect that number is also still low. My father has dementia. I have had to support him through a mental capacity assessment. No matter how clear the Act or various legislations or definitions may be on paper, it is extremely difficult at times to take someone through that process. All he had to do was prove that he had capacity to instruct a solicitor, a decision far less serious and far less terminal than the one we are discussing today.

If you assessed my father’s capacity, you would find—on the comments made by the noble Baroness, Lady Hollins, about literacy and numeracy—that my father has near-perfect literacy and numeracy. We have had comments about executive function. You would find that he has near-perfect capacity for executive function to make important decisions. You would also find that he has virtually no short-term memory. He is more than capable of making a decision, but that decision is gone in 30 seconds—sometimes sooner. If you apply that to this situation, he would be able to make a decision but would not know about it at the point that decision was acted upon.

Returning to the comment from the noble and learned Baroness, Lady Butler-Sloss, about whether it is capacity or ability, I pick up on the comments from the other side of the Committee recently. There is not enough, in the way we judge capacity at the moment, to make this practicable and desirable. We certainly need more. I am not sure whether it is “ability”, but what we have at the moment is not enough to deal with this in practice.

[Lord Harper (Con)]

My Lords, I have listened carefully to the debate. The noble Baroness, Lady Finlay, has done the Committee a service in tabling this amendment. It has enabled us to think in advance of the debate that we will have when we get to Clause 3 on the existing wording in the Bill about the Mental Capacity Act. Some of those issues came out in the debate that we have just had. It has been helpful to cue that up.

I want to comment on a couple of issues following on from the comments made by the noble Lord, Lord Deben. Two different things are being talked about with capacity and ability. I listened carefully to the comments of the noble Lords, Lord Pannick and Lord Scriven. There is a clear mental capacity test. But as others have said—I will not repeat the quote—experts in assessing capacity from the Royal College of Psychiatrists think that this decision was not thought about when the test was designed and that it is not an adequate test. I will not labour the point now, but we should think about whether we need a new test or, as the noble Lord, Lord Deben, said, an additive process where we take the Mental Capacity Act test and add something to it. There are amendments on both of those—a new test or adding things to it.

That comes to the point that the noble Lord, Lord Scriven, made. Of course, it is true that people make life and death decisions about medical treatment and about whether to refuse medical treatment. But there is a qualitative difference between refusing medical treatment, even if the consequence of refusing that medical treatment will be to hasten the end of your life, and to make a decision for active steps to be taken to administer substances to you which will end your life. They are very different things, and they are treated differently in the law. Perhaps that is the reason why we have had that slight cross-purpose. We need to be very precise about our language when we come to have that debate on capacity. I think that that would be helpful. That is all I will say about that at this point. I suspect that we will have a very extensive debate on Clause 3.

I think that the noble Baroness, Lady Finlay, was getting at something a little wider, which was not just about the capability of the individual to make a decision—that is the capacity piece. It was also about both the information they are furnished with and whether they have all the information at their disposal to be able to exercise their capacity to make a decision. It is not just about whether the information is available but whether the services are available that make that a truly proper, informed decision. Clearly, she has enormous expertise in palliative care.

Whether that palliative care is available in practice is incredibly important. Somebody could have capacity, and we could judge that they do. I listened very carefully to what the noble Baroness, Lady Andrews, said, with her expertise on the Mental Capacity Act, and I listened carefully to my noble friend Lady Browning about the importance of recognising how it works in practice, but it is also about whether those services are available. You could have the capacity and a lot of information provided to you, but if the palliative care services are not available to you, you do not have the ability to make a meaningful choice about whether you wish to end your life. I think that is what the noble Baroness, Lady Finlay, was getting at in that wider use of the word “ability” on top of capacity.

When we get to Clause 3 and the amendments to it, one of the things we should think about is whether we accept that the Mental Capacity Act is a good basis. As people on both sides of the argument have said, it is a tried and tested situation. As we heard earlier, it has been tested in court, up to and including the Supreme Court. We should think about whether we want to replace that with a completely new test or whether we actually stick with the Mental Capacity Act and perhaps have some additions to it, which recognise that it is a qualitatively different decision from whether you are having medical treatment or not. That is the essence of it.

In the place it is in the Bill, just accepting the word “ability” probably is not the right thing to do. We want that wider debate. But the noble Baroness, Lady Finlay, has done us a service in flagging up some of the issues that we can now think about in advance of the debate on Clause 3.

[Lord Winston (Lab)]

Before the noble Lord sits down, perhaps he could just clarify a point. Medical royal colleges are often quoted as having a view, but they are very seldom unanimous. I wonder whether he could tell us not just the percentage of psychiatrists but how many psychiatrists who are members of the royal college specifically had this view and how may did not. That is really important. There were a number of people who just did not respond to a question.

[Lord Harper (Con)]

I am happy to answer. I do not know how many did. My understanding is that the royal college, whatever its decision-making processes are, has publicly said that it does not think this is adequate. As I said, I did not quote it, because it had been quoted at length. I put some weight on that.

As a relatively new Member of your Lordships’ House, I am also very struck that this House is blessed with those who have enormous experience in the law, who have to make some of these decisions in practice, and experienced legislators, such as myself, who have looked carefully at the operation of the legislation, both in taking it and post-legislative scrutiny. Many Members have personal experience, either themselves or through family members, of the exercise of these laws in practice. I will listen very carefully to them.

Therefore, the view of the Royal College of Psychiatrists is clearly an important one that I will put some weight on, but I will also listen very carefully to others in the House, who I think will add enormously to this debate as we weigh up this important piece of legislation. I thank the noble Lord for his question.

[Baroness Fraser of Craigmaddie (Con)]

My Lords, I thank the noble Baroness, Lady Finlay, for bringing this debate to the Floor. I declare my interests as chief executive of Cerebral Palsy Scotland, and I have been involved with the Scottish Government on neurological conditions and policies for many years.

What has struck me in the debate so far is something that the noble Baroness, Lady Hayter, said about concentrating on the interests of the person. This is what I see every day when I deal with vulnerable people and they are dealing with service providers, whether in health, education, housing or whatever. I take the point your Lordships have made that this debate is about the difference between “capacity” and “ability”; capacity, as we define it in the Mental Capacity Act, is something that professionals will assess. They have lots of experience of doing that, and that is great. However, if we come back to concentrating on the interests of the person, the person is quite often in this difficult, complex situation for the very first time. Therefore, as my noble friend Lord Deben said, their ability to take on complex information, potentially when there might be multiple comorbidities and issues going on, is very different.

We see it in children in education and in people with communication difficulties—I have an amendment later on about how we support people with communication difficulties to navigate this. But we see it every day with the ability of people to take on something really profound that professionals are used to talking about—and we are professionals in here; we can talk about definitions and how we define things in legislation. I wanted to question whether people in the street that will be dealing with this have the ability to understand all the options, the prognoses and everything in front of them.

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[Baroness Hayman (CB)]

I cannot accept that. I am talking about the Bill that we have before us. The noble Lord, Lord Harper, asked: should we have a novel approach to this? My answer is no; it is safer to continue with the approach that we have.

I want to say one other thing to the Committee. I hope the Committee will accept that, given the experience that I have had here and the honour I had of being Lord Speaker, no one respects more the contribution that this House can make to improving legislation and the commitment that it should do its work properly. The noble Lord, Lord Harper, said that we were blessed in this House with many experts, and that their opinions should be listened to. The noble Lord, Lord Shinkwin, said that we should listen to the voices of those with lived experience. I am sad that the Select Committee did not do that, but I think that that is absolutely correct.

The one thing that we are not is what was said to me in 1974: “You have now been anointed by the popular vote”. I was then a Member of Parliament. It was a long time ago—in ancient times—but it was true. What has worried me slightly about the tone of this debate is that there has been a sense that this was a Private Member’s Bill introduced in the House of Lords, and that we were having the first go at any scrutiny of it. That is not true; it is not true at all. We do often get legislation from the other place that has not been scrutinised, but that is not true of this Bill. It has had much more scrutiny and I think we should have some respect for the fact that that has happened.

People say that we should not have an arbitrary timetable. Of course we do not want an arbitrary timetable. We have to do our job properly, but we should not be forced into a position where we are incapable of completing that job due to having an enormous number of amendments. We should concentrate on the important issues that we want the other place to take our views on seriously. I really think we are in danger of demeaning that process if we allow so much debate that we do not allow the other place to hear considered views on the important issues.

[Lord Harper (Con)]

I have an enormous degree of respect for the noble Baroness, particularly given her position as a former Lord Speaker. I am a relatively new Member of your Lordships’ House, but I have interacted with it. I look around and there are a number of noble Lords here—such as the noble Lord, Lord Pannick—with whom I had a number of interactions on previous matters. So I am familiar with the different role of the two Houses, and I believe it is absolutely our job to get legislation right.

In the end, this is a Private Member’s Bill. It was not in the Government’s manifesto, so it has not been, to use the noble Baroness’s words, anointed by the popular will. This is our job. If in the end this House decides that this Bill is not fit for purpose and cannot be adequately put into law, it is our role to say to the House of Commons, “It isn’t good enough; we need to do this again”. It is our job to say to the Government that this is of such import that, as the noble Lord, Lord Tyrie, said, the Government should do their job and bring forward a better-drafted piece of legislation. That is our right, and we should reserve that right for later stages.

[Baroness Hayman (CB)]

I follow the noble Lord’s argument, but he said that we should say, “We should do this again”. I think that if we reach that situation, the proper formulation is, “You should do this again”, and the other place could consider that. But the way we undertake that scrutiny should be responsible and reasonable and it should not deny the process of doing our job and putting those views and doing that—frankly, we have to be grown up about this and we have to behave responsibly about it.

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[Baroness Coffey (Con)]

I will respond to that. I do not know the answer about the noble Baroness, Lady Murphy. However, I say to the Committee and to the noble Lord, Lord Bassam, that amendments have been made to the Mental Capacity Act 2005 that have not been enacted by this Government. Therefore, we are not even sure exactly which version of the Mental Capacity Act we will be dealing with in the future. The noble Lord, Lord Bassam, is babbling away, but this happened. Amendments were made in 2023. That was on slightly different matter, but it is something I will come to in Clause 3.

I come back to the attack on Dr Price. Perhaps the noble Baroness could be brave. She has used parliamentary privilege to do that. If she really believed it, she might say those words outside the Chamber and see if she gets a legal letter. I thought it was really poor to attack somebody who had been invited and to try to suggest that, somehow, for such a distinguished royal college, she was manipulating a particular report. That was unfair.

I will make one minor observation about the Select Committee. In my view, it was noticeable how distressed Dr Price started to become during that oral evidence session. I am not a clinician or a psychiatrist; frankly, I am just another woman who could see how distressed she started to become. I also spoke to her outside afterwards. We have to bear in mind that we are used to this bear pit—which is much gentler at this end than at the other end—but that is not true of the others.

I will come back to the discussion and one of the questions I wanted to understand when going through ability versus capacity. We have already heard that things such as depression and mental illness are not a disabler. We already know that having dementia is not a reason to be denied, certainly in the Mental Capacity Act 2005. We know that capacity can fluctuate, and I certainly will not repeat what others have said.

What I have not yet understood is how things such as the power of attorney might work, which can be given over for health reasons. I want to get an understanding of the view of the sponsor and the Government Minister about the application of this, before potentially laying further amendments to discuss this.

We know that the Government do not believe that the Bill is in a fit state. They would not have 16 people working on it and the amount of work that has been going on if they did. By the way, that does not include the Government Legal Department in any way.

I thank the noble Baroness for having introduced this, but there is still quite a lot of debate to be had once we get to Clause 3, if we are allowed to see that it is in scope.

[Lord Harper (Con)]

In case I am not understanding it and it would be helpful for the Minister, is the question my noble friend wants the Minister to answer on lasting of powers of attorney whether it the Government’s understanding that somebody in possession of a lasting power of attorney for health and social care would be able to use that lasting power of attorney to seek an assisted suicide for the person on behalf of whom they hold the lasting power? Is that the question she is asking? I was not entirely certain.

[Baroness Coffey (Con)]

My noble friend has put it more accurately—that is precisely the question I am trying to understand. I am trying to be a legislator rather than somebody who argues in court, but the very fact that somebody can make health decisions on behalf of somebody else is important to consider in this matter, and I am not clear that it is explicit in the Bill—yet—that that power of attorney could not apply. We know that the Mental Capacity Act 2005 does not apply to Section 2 of the Suicide Act 1961. I will not go into a history lesson about the Suicide Act at Clause 1, but at the moment everything seems silent on the use of that lasting power of attorney.

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[Baroness Williams of Trafford (Con)]

It might be convenient to concur with what the Government Chief Whip has just said. We could finish in the normal run of things if there were fewer interventions and perhaps if the Front Benches could be allowed to sum up.

[Lord Harper (Con)]

Since I was standing, I will be very brief. I support what the Chief Whip said. I agree with what the noble Baroness, Lady Hayman, said earlier. I agree with the Government Chief Whip about not giving government time, but we need more time to deal with this as a Private Member’s Bill. I do not think that any reasonable person listening to the debate and the expertise contributed from these Benches could have concluded anything other than that this was a debate that reflected well on the House and that we are doing our job seriously and conscientiously. We need to continue to do that. That is all I would say to the Chief Whip.

[Lord Kennedy of Southwark (Lab Co-op)]

As a final point, I agree with the noble Lord. As Government Chief Whip, I take my job very seriously. I love the House, and I want to do this properly. I assure the Committee that I hear noble Lords’ sentiments. I know how long it has taken on the Bill. I know that views are sincerely held on both sides. I will work in the usual channels to deal with these matters.

Terminally Ill Adults (End of Life) Bill

Lord Harper Excerpts

Committee stage
Friday 21st November 2025 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

I just remind the noble Lord, Lord Empey, that of course I did vote for the Brexit legislation and in fact led the Labour Party into the Lobby to support the final agreement on Brexit.

[Lord Harper (Con)]

My Lords, I support the thrust of the amendments in this group, but first, I want to say a word or two on one of the issues that has come up in this morning’s debate. I hope the Committee will indulge me if I just quote a few lines from yesterday’s maiden speech by the right reverend Prelate the Bishop of Chester. The House was a little less well-attended for the debate on the Sustainable Aviation Fuel Bill in which he spoke, but I thought his words yesterday, the ones I am going to read, are very relevant to the debate and the tone of it, so I hope the Committee will forgive me. He said that

“communication is a vital gift for those of us who nurture and curate community. In communication, we need to learn to speak and to listen. This is almost always done in person and directly. Indeed, I argue that one of our primary vocations in this noble House is to be with and to listen, for few disciplines are more vital in the search for wisdom—the search I so often witness in your Lordships’ House. The question for me is not so much how we can be great again, but how we can be kindly present. Greatness is great, but grace is greater”.—[Official Report, 20/11/25; col. 965.]

I think those were wise words. They moved me and I think they are relevant to how we conduct ourselves in this debate on these vital issues.

The noble Lord, Lord Carlile, referred to how useful this debate was, and I believe that it is vital. That is why I quoted those words from the right reverend Prelate. We have raised a range of issues, all connected to people’s capacity to make an informed choice. The point of the debate is for us all—but especially the Bill’s sponsor, the noble and learned Lord, Lord Falconer of Thoroton—to listen to the concerns that have been expressed. I agree with the noble Lord, Lord Carlile, that the noble and learned Lord will then have the opportunity to talk to noble Lords and to bring forward on Report amendments that deal with these issues.

Part of the problem here, and the reason there are many amendments on the Marshalled List and the debate will be lengthy—the noble Lord, Lord Watts, referred to that—is that the House of Commons spent, I think, 17 hours in Committee, focusing on just the first three clauses of this legislation because they are very important. That involved just 23 Members of Parliament. Almost all the proposals that we are discussing were brought up in the House of Commons, but almost all were rejected or disposed of. If some had been accepted and dealt with in the House of Commons, all we may have been doing here is tidying up some of the wording or improving the amendments. However, we have to address them from scratch because they were not dealt with in the House of Commons.

It is our job in the House of Lords to scrutinise legislation and to deal with the things that have not been dealt with. We do that on behalf of people— a number of today’s amendments deal with vulnerable people who do not have the same opportunities that we have. The one thing that we all have in common in this House is that we are all privileged. I am referring not to our material circumstances but to the fact that we have a voice. Many people in this country do not have a voice. Many of the people who have been touched on in these amendments—people of poor material circumstances; people undergoing coercive control, as my noble friend Lord Gove suggested; and people who have severe disabilities—have no one to speak for them. It is our responsibility and duty to make sure that we test these issues and make sure the Bill is as good as it can be.

The noble Baroness, Lady Hayter of Kentish Town, asked whether the noble Lord, Lord Carlile, would support the Bill if some of these things were dealt with. That is not really the question. I have been very clear that I do not support the change, and I will set out why in a moment in relation to one of the amendments. However, I have to confront the possibility that the Bill may become law; I will not find that welcome, but the noble Baroness will. If it becomes law, it is absolutely my responsibility—and the responsibility of everyone in this House—to make sure that the Bill has in it all the protections for vulnerable people. If we were to fail to do that, we would have failed the people of this country, whom we are supposed to support—that is our duty. There will be some people in this House who will, if the Bill is improved, support it; there are some who will not, but that is not the point. The point is to get the Bill in as good a shape as possible.

Let me now turn to the amendments. I will deal first with Amendment 45 on encouragement, so powerfully spoken to by the noble Baroness, Lady Fox of Buckley. The reason that word is important was demonstrated in the short debate between the noble Lords, Lord Pannick and Lord Carlile, on the present position. I hesitate, as a humble accountant, to trespass in the debate between those learned noble Lords, but I will make two points. First, there is a fundamental difference between someone refusing treatment or not having treatment and someone taking deliberate steps to kill themselves. Those are fundamentally different things, and trying to elide them is not helpful to the debate.

The noble Lord, Lord Pannick, talked about the status quo. As I understand it, the current position if you assist somebody to take their own life and the DPP investigates is that the guidance contains the concept of encouragement. There is a specific point, when the DPP is considering whether to prosecute you, about whether you have encouraged somebody to take their own life or tried to talk them out of it. If you have encouraged them not to take their own life but you have, none the less, assisted them, the current position is that that is treated much more favourably than if you had not tried to discourage them. That subtle position in the status quo is something we should maintain, because something very important will happen if this legislation passes, which is why I do not support it: it will, effectively, change society’s view of suicide. In some circumstances it will, effectively, support suicide where currently we do not. In those circumstances, the use of “encouraged” is vital. That is why I support the amendment.

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[Lord Falconer of Thoroton (Lab)]

That will very much depend upon the number of people who apply from particular groups, and I think one can be pretty sure, on the basis of the impact assessment, that there will be sufficient numbers.

[Lord Harper (Con)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

I think it would probably be sensible, unless the noble Lord has something to raise that we have not already dealt with, for me to make a bit of progress.

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[Lord Harper (Con)]

It is directly relevant to the amendment that we are discussing, if the noble and learned Lord will forgive me. I am coming back to what the noble Lord, Lord Carlile, said about the point of the debate. I absolutely get that the noble and learned Lord is very certain about the quality of the Bill. He has set that out in his usual eloquent way. However, if he followed my injunction from the words of the right reverend Prelate the Bishop of Chester yesterday and if he has listened to this debate, he must recognise that that certainty is not shared by many Members of this Committee.

I hope the noble and learned Lord will forgive me if he was coming to this on later amendments, but he has in effect said that he is not persuaded by most of the amendments. If he does not accept that many noble Lords have concerns about the Bill and thinks it is basically fine as it is, I fear that—picking up the point made by the noble Baroness, Lady Hayter—many noble Lords who might have been persuaded to support it had it been improved will not now be persuaded. Is he prepared to listen and amend the Bill in any way at all?

[Lord Falconer of Thoroton (Lab)]

My Lords, first, I am sure that I will not be able to reach the high standard of the right reverend Prelate the Bishop of Chester, but I will try.

Secondly, I do not think I am rejecting the principle of many of the amendments. I am saying that—for example, in relation to an independent decision and to encouragement—the protection is there in practice. I also say to the noble Baroness, Lady Coffey, that her reference to organisations is something we could discuss. I think it may already be covered but let us discuss it.

The noble Lord, Lord Harper, is right: I am saying no to quite a lot of the amendments because, in my opinion, I do not think they are necessary and there is adequate protection. It does not mean I am not listening; but painful as it is, because I respect so many people who disagree with me, I do disagree with some people.

I am very conscious as well of what the Chief Medical Officer, Sir Chris Whitty, said, which is not to over-engineer this and make it a thicket people cannot get through. If you are serious about assisted dying, make sure it is genuinely accessible to people. I am trying to strike that balance.

Terminally Ill Adults (End of Life) Bill

Lord Harper Excerpts

Committee stage
Friday 5th December 2025 Lords Chamber

[Baroness Lawlor (Con)]

My Lords, up to the age of 25, people often struggle to grasp that death is irreversible. They understand in notional terms the point that death ends a person’s life on earth, but they do not really grasp the sense—both those who accept and those who deny the afterlife know this—that life as we know it ends.

Somebody who has not been mentioned is Professor Leah Somerville, a Harvard academic who specialises in psychology and is the director of the Affective Neuroscience and Development Lab. An article on her research says:

“Adolescents do about as well as adults on cognition tests, for instance. But if they’re feeling strong emotions, those scores can plummet. The problem seems to be that teenagers have not yet developed a strong brain system that keeps emotions under control”.


I have suggested the age of 21, not 25, as the lower limit. I regard this as a compromise, and I proposed it at the outset. As I say, the medical evidence points to 25; I am happy to support that.

In conclusion, opponents might say that the seven-year gap between the age at which a person is thought to be an adult for legal purposes and the age at which they become eligible for assisted suicide is simply too long, but no young person should be presented with the option of taking their own life—certainly not those who have been diagnosed as having a terminal illness. They are not physically, psychologically or emotionally developed to the maturity needed to make a judgment devoid of emotion. Although my moderate amendment places the age of eligibility at 21—I stress that it is a compromise—I would be prepared to support other noble Lords on the age of 25.

[Lord Harper (Con)]

My Lords, I want briefly to respond to a point made earlier in the debate by the noble Lord, Lord Winston, whose medical expertise I respect greatly. He quoted a comment from Sarah-Jayne Blakemore, which has not been said already in this debate, and talked about the context in which decisions are made. In a paper, she said:

“Adolescence is characterized by making risky decisions … This suggests that decision-making in adolescence may be particularly modulated by emotion and social factors, for example, when adolescents are with peers or in other affective (‘hot’) contexts”.


That tells me—it is relevant to an earlier discussion—that it is not just the age of the person that is relevant, which is why Amendment 4 from the noble Baroness, Lady Berger, is very helpful. It is about context in decision-making.

I listened carefully to what the noble and learned Lord, Lord Falconer, said about the thought process that he was going to undertake, having listened carefully to some experts. Like him, I am torn on the age issue. The amendment from the noble Baroness, Lady Berger, is very helpful in setting out some of the issues, but I was also struck by what the noble Baroness, Lady Fox, said, so I am slightly torn on whether age is the right way of doing it. I do not know whether it is an assessment.

My final point is that I was struck by what the noble Baroness, Lady Berridge, said—

[Lord Birt (CB)]

I just want to ask: does the noble Lord think that we should try to reach the 10th group of amendments in the course of today?

[Lord Harper (Con)]

I am trying to make a brief remark. I have been speaking for only one minute and 45 seconds; if I keep getting interrupted, I will not be able to sit down. I was going to make literally one more point, having listened to the debate. After all, this is supposed to be a debate where we listen to what noble Lords say and respond—

[Lord Birt (CB)]

Could the noble Lord please answer my question: should we try to reach the 10th group of amendments today?

[Lord Harper (Con)]

I want to try to make progress, which is why I was trying to keep my remarks very brief; if the noble Lord keeps interrupting me, they will necessarily take longer. All I was going to do was make one further point.

I was very struck by what the noble Baroness, Lady Berridge, said about the differences in the medical prognosis for a number of conditions among younger people. I suggest to the noble and learned Lord, Lord Falconer, that as well as looking at the assessment process, he should look at the extent to which clinical advice and evidence can be brought in to see whether a terminal diagnosis for a younger person is qualitatively different; from listening to the noble Baroness, Lady Berridge, that appears to be the case. That may be the appropriate way to pick up the concerns, which are widely shared. But I also accept—the noble Baroness, Lady Fox, made this point—that the law has to have some clarity to it. Like the noble Baroness, I think that having lots of different ages would be very difficult.

From listening to the points made by the noble Baroness, Lady Berridge, I think that may be a way forward; I commend it to the noble and learned Lord when he undertakes his thought process for what he may bring forward on Report.

[Baroness Spielman (Con)]

My Lords, I have not spoken previously on the Bill, nor tabled any amendments. But as the chief inspector responsible for inspecting children’s social care, as well as education in mainstream and special schools, I have visited many institutions with children with life-limiting conditions. I recognise that the Bill has profound implications for many children and young adults.

I support the amendments to raise the minimum age of eligibility—in particular, the amendments from the noble Baroness, Lady Berger, to amend the minimum age limit to 25 throughout the Bill. There are, and always will be, children in their teens with terminal illnesses who are thinking about their own futures, in the context of the choice that they would be empowered to make from their very first day as adults, before they have any experience of adult palliative care.

Even though the provisions now rightly prevent medical practitioners initiating the subject of assisted dying with children, we know that young people seek out and are influenced by all kinds of information freely available online—and we have plenty of precedents. Consider what young people can already see on suicide, eating disorders, puberty blockers, cross-sex hormones and, indeed, claiming invalidity benefits. These precedents show that no matter what constraints are placed, there will be freely available video content promoting assisted dying and some of it will coach viewers in how to pass mental capacity tests. That reveals the unpalatable prospect of children reaching their 18th birthday and immediately demanding their right to a state-delivered death, with little or no opportunity for adult services to be deployed to offer supportive alternatives.

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

My Lords, I am grateful to noble Lords for their contributions to this debate on the age of eligibility for those who are provided with assistance under the Bill. I have made it clear previously, and reiterate, that I will keep my comments limited to the issues on which the Government have major legal, technical or operational workability concerns.

The amendments tabled by the noble Baronesses, Lady Berger, Lady Lawlor and Lady Hollins, seek to raise the age at which an individual would be eligible for the provision of assistance under the Bill. The points that I wish to raise here relate to the European Convention on Human Rights. There are potential risks that I am raising to inform the decision-making of noble Lords, but the underlying policies are rightly a matter for Parliament. Under the convention, the amendments in this group could give rise to legal challenge; for example, that excluding people who are under 21 or 25 from accessing assisting dying may not be justified under Articles 2 or 8 of the EHCR, or that this amounts to unjustified discrimination under Article 14.

Noble Lords will be aware that differential treatments, such as raising the age of eligibility, may be lawful if it is possible to persuade the courts to agree that the age limit is justified, necessary and proportionate. There would need to be a reasonable justification for restricting access to assisted dying to people aged either 21 and over or 25 and over. Noble Lords will want to consider this in relation to these amendments.

[Lord Harper (Con)]

Can the Minister be clear? If we decided to limit—whether by age or in some other way that the noble and learned Lord, Lord Falconer, might decide—and put that into primary legislation, is that then not the law of the country? All that the European court could then do is say that it is not compatible but remains the law—or is the Minister saying something different? If we pass primary legislation, that is the law of the land, is it not?

--- Later in debate ---

[Baroness Whitaker (Lab)]

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

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

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

[Lord Harper (Con)]

The noble Baroness referred to the two amendments that I have on the Marshalled List that I have not yet spoken to. She seemed to be ascribing motives to the amendments. She referred only to two amendments—the two amendments I have tabled—and she seemed to be suggesting they were designed to stop people accessing this service. I hope she will stay and listen to me when I explain what my amendments are about, and she will see that is entirely the opposite of what they are designed to do.

[Lord Pannick (CB)]

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

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[Lord Goodman of Wycombe (Con)]

My Lords, I will speak very briefly in support of Amendment 23, which was spoken to by the noble Lord, Lord Frost, bearing in mind that amendments in Committee very often are probing amendments to test the view of the sponsor.

It is important to recognise at the start that it is, in fact, not clear from the Bill whether the NHS will provide voluntary assisted dying services. This was a point in relation to which the Bill was criticised very heavily by the Delegated Powers Committee, on which I sit. But it clearly is the intention of the noble and learned Lord, Lord Falconer, that it should, and I want to assume for the purposes of this debate, very briefly, that it will.

My noble friend Lady Coffey raised at the start of this debate a problem, which was the question of whether someone might seek to obtain residency under the terms of the Bill in order to obtain what has been referred to as death shopping. This is clearly a problem. The virtue of the amendment from the noble Lord, Lord Frost, is that it would deal with this, imperfect though the amendment may be. I would like to hear from the sponsor of the Bill, the noble and learned Lord, Lord Falconer, what his view is of the problem raised by my noble friend Lady Coffey. I think he accepts that death tourism is a problem. Is his view, like that of my noble friend Lord Lansley, that residency remains the only sensible way of determining these matters? If it is, why has he put the additional safeguard into Clause 1 of the Bill? Or, if he thinks residency is not sufficient, what additional safeguards might he be able to offer? I look forward to hearing from him when he responds to this debate.

[Lord Harper (Con)]

My Lords, before I speak to my Amendments 300A and 306A, let me just pick up, briefly, a couple of issues that have been raised in the debate.

First, I was very pleased that the noble and learned Lord, Lord Falconer, said it was very important, in response to the noble Lord, Lord Beith, that we dealt with these border issues. He will remember that I spoke on that on the first day of debate, using my experience as a former Member of Parliament for a border constituency and I raised some of the very practical issues that there will be if we do not get that right. The noble and learned Lord will remember that when I was raising these issues, there were people on the other side of the argument who tried to shout me down before I had even finished. I am pleased, therefore, that he recognises that the issues I was raising are important and valid ones. To make sure these issues work properly, we have to worry about both the England-Scotland border and the England-Wales border.

Secondly, I am very grateful to the noble Lord, Lord Pannick, for the free legal advice he provided to me in answering the question about what the courts could do about a human rights challenge. I did not get an answer from the Minister, so I am grateful to have had it from him.

Thirdly, on the point that came up in the debate about Crown servants, if you are a Crown servant, you can retain your ordinary residence status when you are posted overseas—that applies to diplomats, members of the Armed Forces and civil servants. It does not usually apply, though, to people who work for the NHS, local government and so forth, but we do not have to worry about people who work in embassies.

Let me deal with the issues raised by the amendments from the noble Lord, Lord Lansley, because they are relevant to the nature of this service. He is absolutely right that, for primary care, we do not have the same test on residence that we do for secondary care. There is a reason for that. When we were putting in place the changes for secondary care in the Immigration Act, we considered whether we should implement similar changes for primary care—that was after he was Secretary of State for Health. We did not change that position because there is a very significant community benefit for allowing people, who are physically in the United Kingdom, to have access to primary care, so that they can access all sorts of services, particularly if they have a communicable disease or illness. We absolutely want them to seek early treatment, not just for their own benefit but for the benefit of everyone else. That is why we have wider access for primary care than we do for secondary care, which we limit to people who are ordinarily resident. We allow others to access it, but only if they pay for it.

I argue that, if this is to be provided on the NHS, this service should be treated more like how we provide secondary care, rather than how we provide primary care. It is more akin to that sort of treatment than primary care. That is where I respectfully disagree with the noble Lord.

[Lord Lansley (Con)]

I do not think that we are disagreeing, because my amendments would have the effect of applying an ordinary residence test. That ordinary residence test for the assisted dying service would be exactly the same as the one for planned secondary care.

[Lord Harper (Con)]

In that case, I now understand the noble Lord. When he was talking about primary care, I thought he was suggesting that we had a wider remit, so I am very pleased to hear that.

I will now address my amendments and their purpose. They are intended to deal with the fact that under the Bill, as I understand it, it would be the job of the co-ordinating doctor—a clinician—to make the determination about somebody’s ordinary residence. The Medical Defence Union has expressed concern that requiring medical professionals to do that could put them at legal risk. Indeed, as my noble friend suggested, it sort of turns them into immigration officers. That concern was pointed out when we were making the changes to the then Immigration Bill, which is why the people who make those decisions are not clinicians; they are overseas visitor managers and administrators in the health service.

Therefore, my amendments would shift the responsibility for assessing residency from clinicians back to administrators. If NHS trusts were providing this service, they would use their overseas visitor managers to do it. That is an existing structure: they are people who know how these rules work. As I think the noble Lord, Lord Carlile, mentioned, a tool already exists, which is well understood, to enable people to check people’s eligibility. I think this has already come up in the debate, so I will not dwell on it at length, but I note that ordinary residence is not that straightforward; it is designed in case law, not in statute. When we were bringing forward the Immigration Act, the overseas visitors charging review took place in 2012, which concluded that the vagueness of the definition means that ordinary residence is difficult to interpret and apply on an individual case basis.

I have already been quoted by the noble Baroness, Lady Finlay, and now I am in danger of quoting myself. When I was taking through that legislation, I said that the existing rules were complex. One of the things that came through from the audit was that front-line health professionals find them complex. The evidence we got was not just that this was the opinion of front-line professionals—they were actually complex. We tried to make them more straightforward. It was one of the reasons why we introduced the health surcharge. Rather than try to make it more complex for the health service not to treat people, or to test whether they were treating people, we charged people coming into the country and then let them have access to the health service. That seemed to be a more sensible way of doing it.

That is the essence of my amendment, and I suggest to the noble and learned Lord, Lord Falconer, that he looks at it. On Report, it would be helpful if the Bill was amended to take the test for ordinary residence away from the doctor in charge of this and give it to the organisation that is providing it, so that it can be done as part of an administrative function. From the conversations we had at the time, I know that clinicians and medical professionals feel that it is not for them to gatekeep access to these services, both for legal reasons—as set out by the Medical Defence Union—and, as my noble friend Lord Lansley said, because that is not their job. We already have professionals in the health service whose job is to do that, and it would be better if they were given that task rather than clinicians. That is the purpose of my amendment.

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[Lord Falconer of Thoroton (Lab)]

I accept that completely. The reason the 12 months is here is to give some degree of assurance that the reason you are living here is not because of an assisted death but because it is your genuine home.

I come to the proposal from the noble Lord, Lord Frost. The way it is drafted, although I cannot believe he meant this in the way that he put it, you have to be ordinarily resident in England or Wales, you have to be a British citizen and you need indefinite leave to remain. I was surprised he was saying it would be an easier test to apply. It would not be an easier test to apply, because you would have to apply both ordinary residence and whether you are a citizen or have indefinite leave to remain. Even assuming the proposal is the more limited one, namely, that you only have to be a British citizen or have indefinite leave to remain and you do not have to be ordinarily resident here, that would not be appropriate, for two reasons.

First, the policy choice that the sponsors of the Bill, myself and Kim Leadbeater, have made is that, if you live here—if you are ordinarily resident here—whatever your citizenship or status, you should be entitled to it. Secondly, and separately, I do not think it is appropriate to make it available for people who, for example, have not lived in this country for 50 or 60 years and have no intention of returning. That would invite death tourism, to use the phrase.

The noble Lord, Lord Harper, said that doctors should not be required to make the assessment. If the position is that there has to be some residence requirement, it is perfectly okay for the two doctors who are concerned with this to make inquiries about where someone lives and how long they have lived here. That is not difficult, and in 99.99% of cases it will not give rise to any problems. Let us assume that most people are honest, and say to the doctor, “I actually live in France but I’m coming here because I want this”. The doctor will say that it is not available. I hear what the noble Lord says, but I do not think it gives rise to particular problems. If there are particular problematic cases, these can ultimately be resolved by the panel.

[Lord Harper (Con)]

I do not think that is the experience of the National Health Service. There is a whole cadre of staff—the overseas visitors managers—who deal with people who are trying to access a service. I do not think it is the case that this is straightforward and that in the vast majority of cases there will not be an issue. That is not the NHS’s experience and I do not think it will be the experience of this service either.

[Lord Falconer of Thoroton (Lab)]

I am surprised to hear that. I will make inquiries, but I am almost sure that that will not be the case with this.

The noble Lord, Lord Mackinlay, gave us an interesting tour d’horizon of the law and said how “ordinarily resident” applies in various areas. “Ordinarily resident” means the same thing in all those areas. For the reasons I have already given, I do not think it will prove a difficult thing to apply in practice. I am grateful to the noble Lord, Lord Meston, for his endorsement of the approach to “ordinarily resident”.

The noble Lord, Lord Wolfson, asked me a number of questions, such as about the citizen who was ordinarily resident here and then went to live abroad—I think that was the case raised by the noble Lord, Lord Moylan. If a person decided that they were going to move to Spain and live the rest of their days there, then when they become ill they wanted to come back and have an assisted death, under the terms of this Bill they would not be eligible because they would not have been ordinarily resident in this country for 12 months—this country being England and Wales.

The noble Lord’s second question was about somebody from Northern Ireland who comes here and asks for an assisted death. Again, they would not be eligible because the assumption under his question was that that person’s ordinary residence was in Northern Ireland. His third question was about why opinion is not satisfied. It seemed to us that opinion is enough in relation to this because it would be done basically by asking a number of questions and you would assume that the answers that you had would be honest.