Terminally Ill Adults (End of Life) Bill

Committee (1st Day)

Motion

That the House do now resolve itself into Committee.

My Lords, I apologise, but I rise to raise a procedural issue crucial to the reputation of your Lordships’ House. When I blocked out my diary for the Fridays scheduled for Committee on this Bill, I did so in good faith. I assumed not only that your Lordships’ House would recognise the value of the views of Members with lifelong lived experience of disability, but that steps would be taken to ensure that those views were heard on an equal and non-discriminatory basis. That would be entirely in keeping with the Equality Act 2010, which placed on organisations a legal duty to make reasonable adjustments on account of disability in, among other things, the way in which they work.

In the belief that your Lordships’ House and the Government will appreciate the crucial importance of our being seen to set an example and uphold the law, which we passed and which we expect others to abide by, I emailed the Government Chief Whip and wrote to the Prime Minister to explain that, because of my disability, I need to leave by 3 pm in order to catch my flight home. I requested an assurance that the House would not sit beyond 3 pm, which is of course the time by when the House normally rises on a sitting Friday. Regrettably, I have been given no such assurance. Instead, the Government are using a procedural technicality as a feeble fig leaf for discrimination against me as one of the House’s Members—one of its few Members—with lifelong disability. I do not believe it is beyond the wit or the will of the Government, or indeed your Lordships’ House, to ensure that we rise by 3 pm so that I can participate today and on other sitting Fridays on an equal and non-discriminatory basis. Given that not one organisation of or for disabled people supports this Bill, surely it is right that all of us—every one of us—are enabled to do our duty of subjecting this monumentally significant Bill to the forensic scrutiny it requires.

In conclusion, do we really want to send the message to those who are following our proceedings today, “Do as we say, not as we do”? That would be shameful and it would be unworthy of your Lordships’ House. For our own sake, I urge the House not to discriminate against me as one of the very few Members born disabled. I therefore ask that the House rises by 3pm.

My Lords, I have every sympathy with the noble Lord, but I would like to thank the Chief Whip, the noble Lord, Lord Kennedy, for his willingness to listen and to be flexible, especially when I, together with a number of colleagues, asked for the Second Reading to be split into two days. In the Chief Whip’s remarks yesterday, he talked about convention and tradition, and so we are to rise at 3 pm or thereabouts. I place on record that, as a modern Orthodox Jewish Member of your Lordships’ House, sitting on Fridays in the winter is deeply problematic. Shabbat begins today at 3.54 pm; on 5 December, it will begin at 3.35 pm and on 12 December at 3.33 pm. Your Lordships will know that, by 3.54 pm today, I and others will need to be ready for Shabbat, and I will be in synagogue.

Keeping with my tradition, as the House will follow its tradition, there will be times, therefore, over the coming weeks that I and some others will be absent— I hope that that does not occur when I have an amendment in my name to speak to. I am grateful for the indulgence of the House, but I felt it really important to place this matter on the record as we begin Committee, which will take place only on Fridays.

My Lords, I suppose it would be apt for me to complete the Holy Trinity of faith. We have started with the Christian faith, we have heard a Jewish dimension and we have heard about equality and opportunity. As a member of the Islamic faith and as a practising Muslim, I say that, while I fully respect the House and I am grateful to the Chief Whip and the Leader, it is important that we reflect all traditions.

One of the main challenges that I have with this Bill is the lack of consultations with different communities. As many noble Lords will be aware, Friday is also a sacred day for Muslims, particularly in the middle of the day with the Jummah prayer. I just flag that point. I of course respect the organisation and the business of the House, but ask that there is time for those who practise the faith and choose to offer prayer by congregation in the middle of the day. Following on in support of my noble friends Lord Shinkwin and Lord Polak, I think that the diversity of our country, the diversity of the House and the respect of all traditions and faiths is something that should be borne in mind.

My Lords, I will first say, as a Catholic, that I have great respect for the three noble Lords who have spoken: the noble Lords, Lord Shinkwin, Lord Polak and Lord Ahmad of Wimbledon. I like all three noble Lords very much, as they know, and I am sympathetic to the points they raised. It is why I made a statement to the House yesterday, after Questions, which I then sent to every noble Lord’s parliamentary email account. My statement and email sought to help colleagues with reasonable planning assumptions, in line with the usual conventions.

The Government would never seek, on a Private Member’s Bill, to force the House to do anything it did not want to do. My plan today is, if necessary, to return to this Dispatch Box at a convenient point around 2.30 pm to again give advice to the House on how we achieve a rising time of around 3 pm—it could be before or slightly after. At the end of the day, the decision is the matter for the House, not for me as Government Chief Whip. This is not a government Bill. The Government are neutral on the Bill. At this point, though, I think we need to move on from procedure and start debating and scrutinising the Bill and the more than 900 amendments before us, line by line, with respect and courtesy for each other and for the different opinions genuinely and sincerely held across the House.

Motion agreed.

Clause 1: Assisted dying

Amendment 1

1: Clause 1, page 1, line 3, leave out “or Wales”

My Lords, group 1 is perhaps not the ordinary place to start when we are considering the issue of Wales, but I have tabled 40 amendments with specific reference to Wales for a reason. We will get into aspects of this in more detail and I am grateful to the noble Baroness, Lady Smith, and the noble and learned Lord, Lord Thomas, for degrouping some of their amendments, because I think it is important that we have a considered debate about how the Bill could potentially apply in Wales. I am also conscious that the Committee will want to get on to the key principles that we will cover in later groups.

My reason for raising this is that the Bill started as a judge-led process, with quite a focus on, in effect, decriminalising parts of the Suicide Act. I am in no doubt that that is a reserved competence: having the one judicial system. I completely accept that. That is not what I am seeking to get into. However, what has happened in the Commons, and even more now in Committee in your Lordships’ House, with the amendments that have been tabled, has basically flipped the Bill into being a Bill on NHS-provided assisted dying—or “assisted suicide”, or “assisted help”; I have forgotten the varieties that are now being proposed on what it is going to be called—and without doubt, health is devolved to the Welsh Government, and therefore the Welsh Senedd.

There have been a number of debates in the Welsh Senedd, and the Welsh Senedd has consistently said that it does not want assisted suicide to go ahead, particularly in Wales, under its devolved elements. That vote was actually taken fairly recently and, as a consequence, I am concerned that aspects of the Bill will, in effect, potentially be breaking the Sewel convention, although I accept that the Welsh Government are now on to their second legislative consent Motion and will have more.

When I have asked the Government questions, I have tried to do it through freedom of information requests, just trying to understand what concerns the Government have had about the Bill and why it has needed, I think, 11.7 full-time equivalent civil servants working in the Department of Health and more than three in the Ministry of Justice to work through and understand the issues that have made the Government decide, “That’s not workable”, “That’s not practical”, “Let’s think about the legal element”. I have been blocked at pretty much every turn. I have been told, on FoI elements, “It’s going to take too long to answer you”. Indeed, I am still waiting for an answer from the Department of Health, but I got another one just saying, in effect, “Well, the Minister mentioned it basically in Committee in the other place, you can look it up yourself”. I am not sure that that is the attitude that is going to help us get through this detailed understanding of where we are.

My Lords, I rise to support the amendment standing in the name of the noble Baroness, Lady Coffey. Some people may detect from my accent that, although I hail from the great city of Bangor, it is not the great city of Bangor in north Wales but the great city of Bangor in Northern Ireland. I have particular empathy with the amendments that have been put forward by the noble Baroness due to my experience as a Minister in a devolved Administration. The clarity the noble Baroness seeks goes to the heart of the relationship between the devolved Administrations and Westminster, and it is of particular relevance to this Bill.

Generally speaking, a Minister in a devolved institution will face three categories of legislation. First, there will be reserved matters, which are entirely within the purview of Westminster—national issues, which I think everyone would accept. Secondly, there will be a range of issues which, although not strictly reserved, are of such obvious applicability across the United Kingdom that a legislative consent Motion should be applied. I do not see the noble Lord, Lord Foulkes, in his place, but on occasions even the SNP Government in Scotland have been prepared to sign up to legislative consent Motions. The third category—the bulk of legislation—is situations that should be decided locally, where a devolved Government and a devolved Parliament can choose whether to follow what is happening at Westminster and in England, to take a different path in seeking either to virtually replicate or to amend, or to go in a tangentially very different direction. That is at the heart of democratic accountability in devolution.

I believe that this is an issue that should be decided in Wales. It is an issue that should clearly fall into category three. We all know that we have a very unusual constitutional set-up in the United Kingdom, where devolution to Wales, Scotland and Northern Ireland is on a slightly different basis in each case. That can produce some unusual aspects. What we have today is a certain level of anomaly, because this legislation falls into what may be described as a fourth, hybrid category. As the noble Baroness, Lady Coffey, highlighted, the distinction is between the aspects that deal with criminal justice and criminal responsibility, and those that deal with health and social policy, with the former being reserved and the latter being devolved.

My Lords, I support my noble friend Lady Coffey’s amendments in this group. As I looked at the title of the Bill, “terminally ill”, and then saw clause after clause talking about the patient and the doctor’s involvement, I was clear that this was a medical Bill. We had the Secretary of State for Health saying that he was in charge of it, and the Department of Health and Social Care, which seconded about 30 officials to help rewrite it, in a way taking ownership of it. Then I asked myself: why on earth are we legislating for Wales when health is a devolved matter in Wales and the Senedd is in charge of health matters? This is where it is really Pythonesque, because although this is a medical Bill in England, it is a criminal Bill in Wales, and criminal matters are not devolved to Wales. How on earth can the same Bill be a health Bill in one country of the union and a criminal Bill in another?

On 23 October last year, Senedd Members, including the First Minister, Eluned Morgan—the noble Baroness, Lady Morgan—and the Health Minister, Jeremy Miles, voted against a Motion calling for a new law to allow assisted dying in Wales and England. Miles had earlier warned of “huge ramifications” for Wales if the law changed. In total, 19 Senedd Members voted in favour of the Motion, with 26 against and nine abstentions. However, the Senedd does not have the power to change the law on assisted dying in Wales, so the vote was symbolic. The Senedd does not have the power to legalise assisted dying, but the Health Minister indicated that it is likely that future legislation will require another vote to give Parliament consent.

The Welsh NHS, which is almost totally devolved and overseen by Cardiff politicians, would be responsible for implementing the law. However, I understand that the Senedd can still vote on whether to implement the legislation, as parts of the Bill touch on devolved areas, so the Welsh Government would need to pass specific regulations and gain an affirmative vote from the Senedd before the Welsh NHS could provide the service. I am not a great fan of the devolved Administrations, but they exist and they have a genuine job to do. In Wales, this would mean that their NHS and its doctors would have implemented all the provisions of an English law, which they had no power to change. That does not seem right. If the Senedd in Wales can be trusted to run the NHS in all medical facilities in Wales, it should be trusted to make its own terminally ill end-of-life Bill.

Clause 42 says: