Terminally Ill Adults (End of Life) Bill

Lord Harper Excerpts

Friday 20th March 2026 Lords Chamber

[Lord Weir of Ballyholme (DUP)]

My Lords, it is good to see the noble Baroness, Lady Prentis, back in her place, and I am sure the whole Committee welcomes her back.

Unlike the noble Lord, Lord Carlile, I cannot claim to have a background in representing Wales—the closest I have been is on a few childhood holidays—but I have experience in one of the three main devolved Parliaments in the United Kingdom. We have a unique constitutional settlement in the United Kingdom, part of which is the slight irregularity and rough edges so that in Northern Ireland, Scotland and Wales devolution does not happen in exactly the same format.

I find myself in complete agreement with the noble Baroness, Lady Smith, who made an excellent speech. I do not know whether she should be more worried that I agree with her or I should be more worried that I find myself in full agreement. The reality is that her speech clearly indicates that the amendments in this group, which are worthy of support, go to the heart of important issues relating to the constitutional settlement that we have in the United Kingdom. They are worthy of support, regardless of whether you are the strongest supporter of this Bill and the principle behind it or you are the most fervent opponent.

It is important that the will of the Parliaments of Northern Ireland, Scotland and Wales is fully respected. On occasion, there is a danger that the Parliament in Westminster shows a bit of a tin ear to the desires of the Parliaments in the devolved nations. As has been alluded to, we have at times seen—I will not go into the details—things imposed on Northern Ireland against the wishes of the Northern Ireland Assembly. Similarly, we need to be sensitive to the wishes of the Welsh Senedd. On the consent Motion, the Senedd was left in a virtually impossible situation. It is concerning that that has been misrepresented by some as the Welsh Senedd embracing a Bill on assisted dying. That has been the spin, but we know that the one vote that has taken place on the principle saw the Senedd say that it did not support legislation of this nature.

Clearly, there are health service implications of assisted dying. As such, we should respect the positions of the devolved Parliaments in Wales, Scotland and Northern Ireland. This week, Scotland has looked at its legislation, which I agree is not the same as the Bill before this Committee. We were told by supporters of the legislation in Scotland that it was “bulletproof”, but then we were told that it did not have the same level of safeguards. That slightly calls into question the oft-repeated phrase that this Bill is “the safest in the world”—those phrases seem very similar. It is important that we respect the wishes of the devolved institutions.

The noble Lord, Lord Pannick, is right on one particular point. On the very first day in Committee, a number of amendments touched on this area, particularly those tabled by the noble Baroness, Lady Coffey. One of the disappointments, which is symptomatic of the way that this Bill has been dealt with, is that concerns were raised on day one, yet they have not been properly addressed. It seems to me that, rather than Wales falling into line with what is brought forward in Westminster, we should be taking action that enables this place to retrofit whatever decisions are made in Wales for the Welsh people.

I conclude by slightly oddly agreeing with one point that was made in an intervention. One noble Lord said that, essentially, we have had enough talk about the lack of funding for palliative care. In one sense, he is right. It is important that we have less talk about funding palliative care and more action on funding palliative care.

[Lord Harper (Con)]

My Lords, I want to touch on a number of points. First, I join the noble Lord, Lord Pannick, in welcoming my noble and learned friend Lady Prentis back to these Benches. I do not think she will mind my saying that she has been following our debates assiduously from home—she cannot get enough of them. It is a delight to see her come back to hear them in person.

The noble Lord, Lord Pannick, put his finger on one of the issues by asking what reason there could be for us not legislating for Wales. Well, the rather obvious reason was set out clearly by the noble Baroness, Lady Smith of Llanfaes: the Welsh Senedd has debated the principle of assisted suicide and has decided that it does not want it to apply in Wales. I think we should respect that.

[Baroness Smith of Llanfaes (PC)]

I want to clarify that that is not what I said in relation to the debate on the principle. That was a separate debate, and I do not think that it is necessarily relevant to the discussion, given that the LCM has been voted on.

[Lord Harper]

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

[Lord Pannick (CB)]

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

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[Lord Harper (Con)]

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

[Lord Falconer of Thoroton (Lab)]

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

[Lord Harper (Con)]

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

[Lord Deben (Con)]

We are not going to change the devolution settlement in this Bill—of course we are not. That is not the issue and that is not what is before us. Instead, this comes back to the Government. I entirely agree with the speech from the noble Lord, Lord Carlile, but we are supposed to rely on the Government saying that, after we pass this, they will deal with the money. That is the problem. I do not believe them. They have to tell us what the money will be and where it will come from. They have to tell the Welsh that the money going to Wales will be increased proportionately so that Wales can deal with it. Until they do that, we cannot make proper decisions. I totally agree otherwise with what the noble Lord, Lord Carlile, said.

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[Lord Harper (Con)]

Hang on. The noble Lord has just intervened on me; I am still making my speech, and I need to deal with this. I agree with the point he made.

Let me come on to the amendments from the noble Baroness, Lady Smith of Llanfaes. She has set out an alternative way of doing this, which retains the powers entirely with the Senedd, and there is a lot to be said for that. I will not say more about that now, because I made those points when we debated Wales in the first place. Instead, I have two further questions to ask.

In my reading of Clause 42(3) and (4), the Secretary of State—at Westminster—

“may by regulations make provision about voluntary … dying services”,

including the Henry VIII power to amend primary legislation. Does that enable the Secretary of State—a Secretary of State at Westminster—to amend the legislation that set up the health service in Wales, the National Health Service (Wales) Act 2006, which sets out the foundational principles of the health service in Wales? If it does, it is exactly what the noble Lord, Lord Stevens, said the other week: it again means that this bit is a Trojan horse allowing the fundamental principles of the NHS to be changed in Wales, not by Welsh Ministers but by a Secretary of State at Westminster and, as my noble friend Lady Finlay said, without even having to consult Welsh Ministers. That is not acceptable in principle, and I would be grateful if the noble and learned Lord could confirm that. I will take one more brief intervention, because I have one more point to make before I sit down.

[Lord Carlile of Berriew (CB)]

Has the noble Lord noted that Clause 42(1) and (3) have identical wording? Both the Secretary of State and the Welsh Ministers

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

Maybe there is a conundrum that needs to be resolved there.

[Lord Harper (Con)]

I have noticed that. It limits their powers to what is within the legislative consent of the relative bodies. I am not clear about that fundamental point.

My final point comes back to the issue about getting answers. On the first day of our debates, I raised a number of issues—which I will not repeat today—from my experience as a Member of Parliament for a constituency on the border. There are practical questions about how we deal with those cross-border issues and about who sets out the rules for people. Is it based on where they live, or on where their GP is based and who delivers their healthcare services? I asked some very specific questions and highlighted the real issues created by that, if we do not resolve them. We are now on day 12 in Committee, and I have not had any answers to any of those very specific and detailed questions that I asked on day one. It is for reasons like that—I say with respect to the noble Lord, Lord Pannick—that we are making such slow progress. We are asking questions but we are not getting answers.

[Lord Pannick (CB)]

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

[Lord Harper (Con)]

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

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I cannot let the noble Lord, Lord Pannick, get away with that. What happened on Wednesday night was a separate issue. As it happens, I argued for a change in the law in relation to decriminalising abortion—but now I am on this side. This sort of easy “swatting away”, “culture war”-style argument is unhelpful. People, in good faith, are concerned about the lack of safeguards in this Bill.

I do not agree with the idea that no one wants to get to Report. I would much prefer to be voting on aspects of the Bill, because a wide range of the concerns that have been raised could be addressed through amendments tabled by the sponsor of the Bill so that we can get on with it. That is what I would want.

The only reason we are discussing Wales, as far as I am concerned, is what has happened since we discussed it on the first day in relation to the Senedd’s decision. It is a perfectly appropriate thing to raise. The idea that we are wasting time talking about Wales—said by people who apparently respect devolution—seems a bit rich. We want to get to Report, and we should keep the insults out in order to do so.

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[Lord Falconer of Thoroton (Lab)]

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

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

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

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

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

I shall now deal with the amendments in that context.

[Lord Harper (Con)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

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

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

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

[Lord Harper (Con)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

Let me finish.

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

[Lord Harper (Con)]

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

[Lord Falconer of Thoroton (Lab)]

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

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That is most certainly not a matter to put into the Bill. That is a matter for the respective health services to decide how it is dealt with, and then for them to liaise with each other. Those were the questions he asked, and it is not really for me to answer them.

[Lord Harper (Con)]

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

[Lord Falconer of Thoroton (Lab)]

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