Terminally Ill Adults (End of Life) Bill

Committee (11th Day)

Clause 4: Voluntary Assisted Dying Commissioner

Debate on Amendment 142 resumed.

My Lords, debate on this group, as with every group thus far in the Bill, has been extensive and in depth. We have heard from around 19 noble Lords on over 70 amendments. His Majesty’s loyal Opposition do not believe that it would be an effective use of your Lordships’ time for us to summarise the excellent contributions made across all Benches by many noble Lords. The relevant points have been highlighted. We welcome the opportunity to hear from the Minister and the noble and learned Lord, Lord Falconer, to understand their position on the proposals that we have all listened to with interest.

My Lords, as with the groups on 27 February, I have structured this speech by grouping amendments by theme rather than taking them in order. This is in the interests of dealing with them as quickly as possible. If anything needs a longer explanation then I will take interventions, but it would be a more effective use of time if noble Lords wrote to me so that I could try to give a fuller and more detailed explanation.

I will begin with some observations about the legal implications of some of the amendments, then outline what the Government see as operational workability issues presented by some of the amendments. Finally, there will be some brief drafting considerations. I shall continue to limit my comments to amendments on which the Government have major legal, technical or operational workability concerns. I remain happy to write to any of your Lordships who have further questions relating to the workability of any amendment and will place a copy in the House Library.

The Government’s position remains that it is for Parliament to consider the policy. I will therefore not provide a government view on the merits of any proposed changes or make any observations in a personal capacity. When we were last in Committee, the noble Baroness, Lady Fox, raised how the Government plan to implement this Bill; she was not alone in doing so but she mentioned it specifically. We have not undertaken detailed implementation work as that would precede the parliamentary process. Should Parliament pass the Bill, the Government will undertake detailed work to develop a delivery model and on workforce planning, engaging with stakeholders and delivery partners, including the judiciary.

I turn first to legal considerations and specifically the compatibility of some of the amendments with the European Convention on Human Rights. The articles in question are Article 6 and Article 8. I turn first to Article 6 risk. There are four amendments in this group which, in the Government’s opinion, may interfere with a person’s right to a fair trial under Article 6. The first is Amendment 499, in the name of the noble Baroness, Lady Finlay of Llandaff, which would introduce a route to annulment of a certificate of eligibility where material circumstances have changed. However, it requires further detail about the process, so it is difficult for us properly to assess it at the moment.

Amendments 495D and 496D, in the name of the noble Lord, Lord Harper, would require that a person must apply to the commissioner for referral to a second panel within 10 calendar days of the refusal from the first panel. Given the short timeframe, these amendments may raise Article 6 issues if there is no discretion involved.

I turn to Article 8 risk. There are five amendments in this group which may interfere with a person’s right to private life. The first is Amendment 462B, in the name of the noble Lord, Lord Jackson of Peterborough, which would introduce a blanket requirement for the publication of a person’s name following their application to the panel. The second is Amendment 492, in the name of the noble Lord, Lord Sandhurst, which would require notification of a panel’s decision on this personal matter to any person who has given evidence, but without any discretion to the panel to assess the necessity or proportionality of that notification.

The third is Amendment 933A, in the name of the noble Baroness, Lady Coffey, which seeks to restrict a panel chair’s discretion to grant a person a full private hearing. The fourth is Amendment 480A, also in the name of the noble Baroness, which would remove the panel’s discretion over the technology that can be used to contribute to hearings. This could mean that the panel would be unable to make appropriate adjustments for all circumstances, such as a person in a rural area with low connectivity. Without such a discretion, issues about equality and discrimination might arise, leading to a risk under Article 8 when read with Article 14. On the equality implications of allowing video and audio evidence, which my noble friend Lady Keeley asked about, I refer her to the letter placed in the Library by the Health Minister, my noble friend Lady Merron, on matters covered by the equality impact assessment and the Government’s rationale for doing so.

The fifth amendment is Amendment 459, in the name of the noble Baroness, Lady Finlay, under which an individual who does not wish their children to be informed of their decision to request an assisted death would be excluded from accessing assisted dying related services. Once again, in the absence of a discretion, the Government have concerns that this might infringe Article 8. The amendment also raises operational workability issues in its requirement for “bereavement support” for some children of people seeking assistance but not others.

I turn to amendments where the Government wish the Committee to note operational workability issues. I start with the amendments that deal with the assisted dying review panel recruitment—Amendments 925A, 928, 921ZB, 921ZA and 929B. Amendment 925A, in the name of the noble Lord, Lord Murray of Blidworth, is in direct conflict with the established legislative process governing the involvement of the Judicial Appointments Commission in the appointment of non-judicial officeholders and would create significant workability issues were it enacted. The incompatibilities are complex and the analysis too long fully to explain now—I would not be thanked for going into many, many pages of this on Friday morning—but I will briefly outline the problems.

It is already possible for the Lord Chancellor to request that the JAC recommends individuals to a role such as this. The process is governed by an established and clearly defined statutory framework. It requires specific steps, such as statutory consultation, to be undertaken before such a request is made. Placing a legislative requirement on the JAC to make such a recommendation would be in direct conflict with this established process. Should the noble Lord wish for a fuller explanation, I would be delighted to write to him.

Amendment 928, in the name of the noble Baroness, Lady Hollins, would expand the size of the panel to six members and sets out further detail as to the required qualifications and experience of panel members. The Committee may also wish to note that the Health and Care Professions Council and the General Medical Council would need to create new assisted dying specialist registers. The Health and Care Professions Council does not currently offer any form of specialist registration, so this change may give rise to unintended consequences without further detailed consideration. It might also limit the pool of healthcare professionals able to provide services. Should this change be made, should that be your Lordships’ wish, legislative amendments to the Health Professions Order 2001 would also be required.

Amendment 921ZB, in the name of the noble Baroness, Lady Coffey, would significantly reduce the pool of eligible legal panel members, which may limit the speed and flexibility of appointments to the panel. Of course, if it is the will of the House to accept the amendment, the Government will work with the judiciary to deliver it.

Amendment 921ZA, also in the name of the noble Baroness, Lady Coffey, would require that a legal panel member could be a person who holds or has held judicial office in England, but the explanatory statement accompanying the amendment notes that the intention is to clarify that the legal panel member could be a person who holds or has held judicial office in both England and Wales. It is therefore unclear to the Government what the amendment is trying to achieve. If it is trying to restrict legal panel members to current or past judicial officeholders in England, that is not possible, given that judges of the senior courts are appointed in the unified jurisdiction of England and Wales.

The Minister will know that I will discuss later why I do not think that the legislation should apply to Wales, and that the Welsh Senedd should make the decision. I tabled the amendment because, at the moment, the judge does not have to be a judge from this country. As far as I can tell from the Bill, it could be a judge from anywhere in the world who has served under the common-law process.

I am sure that the House will welcome that clarification from the noble Baroness, but it may be that there is a drafting issue, because the amendment refers to England rather than England and Wales, and there is no such creature as a member of the senior judiciary from England only.

Finally in this group, the Government have concerns that Amendment 929B, also in the name of the noble Baroness, may have an impact on the operability of an assisted dying service by placing apparently arbitrary limits on the resourcing of the panel when the demands of that service are, as yet, unknown.

I turn now to groups of amendments dealing with assisted dying review panel proceedings and powers. Amendment 463, in the name of the noble Lord, Lord Murray, would require the commissioner to assess the procedure adopted by every individual assisted dying review panel. That would remove any flexibility for the panel to deviate from procedure, should it seem appropriate to do so for either inquisitive or compassionate reasons associated with the case.

Amendment 464, also in the name of the noble Lord, Lord Murray, would give the panel the same powers, privileges and authority as the High Court. The powers of a High Court judge are significant and wide-ranging. They are set out across statute, court rules and the inherent jurisdiction of the court. The Government think that some of them, such as the power to imprison for contempt, are not the sorts of powers that your Lordships may feel are appropriate for such a panel. Without more clarity and detail, it is impossible to assess whether this kind of extension would be appropriate, and it would be extremely difficult to apply in practice. In the view of the Government, the amendment ought to set out which powers, privileges and authorities it is intended to capture.

Regarding Amendments 495B and 941A, both in the name of the noble Baroness, Lady Maclean of Redditch, your Lordships may wish to note that requiring the panel to identify and provide a report on unmet social or palliative care needs is not within its remit, nor would the panel necessarily have the knowledge of local service provision or the expertise to make personalised recommendations on social and palliative care. Such a report therefore risks containing inaccurate or incomplete advice.

Actually, I have further questions of clarity from the Government’s response. In the amendment that I tabled about His Majesty’s Counsel, the Minister mentioned workability concerns about there not being enough people. I would like to understand whether the government proposal suggested that amendment to the Bill’s sponsor. Do the Government have any consideration about alternatives I proposed during debate, where, instead of King’s Counsel, we could have people such as deputy court judges or other sorts of judges? In the two weeks since we last discussed this matter, have the Government considered that?