Terminally Ill Adults (End of Life) Bill Debate
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Lord Harper
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(1 day, 9 hours ago)
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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—
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.
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?
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 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 Falconer of Thoroton (Lab)
Sorry, the noble Lord, Lord Gove, asked a second question which I did not answer.
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)
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.
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.
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.
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.
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.