Clause 2 — People who lack capacity

Mental Capacity Bill – in the House of Commons at 7:00 pm on 5 April 2005.

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Lords amendment: No. 1.

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission

With this we may consider amendment (a) thereto, Lords amendment No. 2, Lords amendment No. 3 and amendment (a) thereto, Lords amendment No. 4 and amendments (a) to (e) thereto, Lords amendments Nos. 5 and 6, Lords amendment No. 7 and amendment (a) thereto, Lords amendments Nos. 14, 17 to 19, 22 and 23, Lords amendment No. 24 and amendment (b) thereto, and Lords amendments Nos. 71, 74 and 93.

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green 7:16, 5 April 2005

I beg to move amendment (a) to Lords amendment No. 1.

I draw the attention of the House to other amendments that I have tabled in the first group: amendment (a) to Lords amendment No. 3, amendment (a) to Lords amendment No. 4, amendments (b) to (e) to Lords amendment No. 4, amendment (a) to Lords amendment No. 7, and amendment (a) to Lords amendment No. 11. I have also signed amendment (b) to Lords amendment No. 24 and others.

I shall not go through the amendments in detail. As has already been made clear, we have only one hour and I know that many other hon. Members wish to get in. Each of the amendments was designed to demonstrate that, during the passage of the Bill through the House and another place, the Government have not met many of the major concerns of those who made representations to the Government during the consultation period and subsequently. There are many serious flaws in the Bill.

On the point about the correspondence between the Archbishop and the Government, I know it is on the record in the other place, but the Archbishop has expressed his deep unhappiness with the fact that the Government, having given undertakings in the House, have not met them during the Bill's passage through the Lords. At the time of that rather messy conclusion to the debate in the House, a letter was circulated on the Government Benches which purported to suggest that there had been tacit agreement between the Government and, at that stage, Archbishop Smith about which amendments would be acceptable in the Lords. That was not circulated in all parts of the House. The Archbishop has said that the spirit and wording of that letter have not been met.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Is my right hon. Friend saying that the Government circulated a letter among chosen Members of the House, that that letter was not revealed to the House, and that it now turns out that the promises contained in the letter were not carried through in the debates in the other House?

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

That is pretty much the case. If my right hon. Friend reads Hansard, he will see clearly that most of that messy conclusion is fully recorded and that the Minister finally had to read out the letter so that everyone understood what was in it.

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

I shall give way only once more, because other hon. Members want to speak.

Photo of Edward Leigh Edward Leigh Chair, Public Accounts Committee, Chair, Public Accounts Committee

Does my right hon. Friend agree that this week we have shown that there are limits to moral relativism and that not only does the Bill reek of moral relativism, but the way in which it has been conducted reeks of moral relativism? At the end of this hour surely we must have opportunities to state that there are absolute truths, such as the right to life.

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

I agree. The Bill contains a number of problems, but most importantly I am reminded that we have delayed business in this House because of the death of the Pope. Everyone celebrates his belief, but tonight we are discussing a Bill that cuts across that belief.

Many hon. Members have faith and many do not. I do not want to speak on behalf of anyone, but the Government have a great opportunity to stand by their commitment in this House and the other place and say that they are against euthanasia in all its forms. They know very well that that is still not clear enough in the Bill and that it will be possible for someone who might otherwise live to have life-sustaining treatment withdrawn because someone who was appointed as attorney believes that it is the right thing to do. The Government's problem is that the language used to modify the provision is still not strong enough. It still refers to motive, but the key word that should have been used throughout is "purpose". The Bill should state that if someone acting as an attorney and making a decision can be demonstrated to have the purpose of ending someone's life, that decision should be null and void. That lies at the heart of all our debates.

Many right hon. and hon. Members on both sides of the House hold strong opinions about the matter. They have behaved impeccably, with great honour, and have consulted across the Floor of the House to ensure that we have compromised enough and that the amendments are right. Throughout the passage of the Bill amendments tabled by Back Benchers have offered the Government a solution. They have not always been perfect, but they have been available to ensure that the Bill shuts the door on euthanasia by omission. That is the problem. We now have the prospect of a Bill being railroaded through the House when the Government know full well that they do not have the backing of the vast majority of Members of this House. Labour Members who are not prepared to be dragooned by threats or promises have chosen to oppose it honourably. I simply do not understand how the Minister responsible for the matter or his colleagues in the other place can put their hands on their hearts and genuinely say that they believe that the Bill is now strong enough to exclude the possibility of euthanasia by omission. Someone charged as an attorney could make a decision with the purpose of ending life. That is in the Bill.

Photo of John Redwood John Redwood Shadow Secretary of State for Deregulation

My right hon. Friend is doing a marvellous job for a noble cause. Can he explain why, when the Government say that they share our wish not to make euthanasia legal, they cavil at putting words into the Bill that would guarantee that?

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

The Government have got themselves into a terrible state about whether the provisions that we are discussing might have affected the judgment in the Bland case. I accept that that is one of their main concerns. They have been anxious to get the Bill through because many charities want it. There is a legitimate reason for that and I do not cavil at it, but what bothers me is that the Government have split the difference. Ultimately the problem boils down to a word or, in the case of their hon. Friends' amendment, a single line. It would cost them nothing, even now, to turn to their Back Benchers who tabled the amendment and agree to include it in the Bill. Even I would be satisfied that that would at last safeguard the problems that we are talking about. They cannot even bring themselves to do that. That is essentially what happens when civil servants take control of an issue and Ministers are, as happens too often, driven by those civil servants. They are generalists, in this particular case, who do not understand, or do not wish to understand, the deep problems that exist in some of the wording that they will allow to go through.

We have limited time and I wish to draw to a close. I shall not talk in detail about the problems, but will simply say that one simple principle is at stake. We have a Bill that has been through a fair amount of debate in both Houses and which, in its last phases, is about to be driven through at speed by a Government who appear, or who give the sense of appearing, to be frightened of further debate, because that debate would expose the reality that the Bill is deeply flawed. The Bill is unlike most others that the House passes and votes on: most Bills are not likely to end in death for somebody who is subject to its failures. That is the reality of this Bill, however. Somebody in future years may find themselves incapable of speaking or controlling events for themselves and relying on someone else whose motivation and purpose is not what it should be. They will have food and fluids withdrawn. In short, they will lose their life. That is the difference between this Bill and many others.

It is not too much to say that a Government who have refused to give their own side a free vote, who have railroaded their own Members as hard as they can, and who have refused to accept the advice or helpful assistance of almost everybody who wanted to see the Bill through, albeit with safeguards, show an arrogance that simply will not stand up over the next few years. I guarantee—it is a small prophecy—that in future years the Bill will be challenged, and I hope that it happens soon. They will be forced to bring it back to reverse some of the provisions that they have allowed to go through.

I urge all right hon. and hon. Members to take the Government at their word in the House the last time the Bill was before us. They said that they intended to do the decent thing; they have not. I urge Members to vote for my amendment and to vote down all the Government amendments.

Photo of Jim Dobbin Jim Dobbin Labour/Co-operative, Heywood and Middleton

I have spent long periods in consultation on the Bill and in negotiation with officials and Ministers in both Houses. I must record that I will strike a slightly different tone from that of Mr. Duncan Smith, in that I welcome much of what has happened and many of the amendments that have been made. I speak, I know, for Archbishop Peter Smith in saying that.

My recent amendment to Lords amendment No. 24 highlights an area in which I still feel there is room for movement by the Government, however. The Bill has been debated at length and amended in specific areas. The area I am talking about now is that of advance decisions. My amendment deals with advance directives and whether suicidally motivated advance directives should be given force in the Bill to bring about a person's death.

My amendment seeks to close a glaring loophole in the Bill as drafted. Advance decisions, as the Government have acknowledged, are not covered by the welcome declaratory provision formerly contained in clause 58, now in clause 61, that restates that the Bill does not change the law on assisted suicide. We need to be extremely clear about that. The preservation of the prohibition in the Suicide Act 1961 on assisting suicide will not stop doctors being forced by the unamended Bill to engage in what many regard, in common sense, as complicity in expressly suicidal refusals of treatment. We need to be clear, too, as the Government have acknowledged, that the best interest criteria in the Bill do not apply to advance decisions. We welcome those best interest clauses.

In my view, the Bill will, if unamended, give statutory force to expressly suicidally motivated advance decisions. As night follows day, this glaring loophole will be exploited by the Voluntary Euthanasia Society, which will promote carefully drafted advance decisions that will force doctors to be complicit in assisted suicide and may make a mockery of our prohibition against assisted suicide.

As my hon. Friend Dr. Iddon said on Report before Christmas, the Voluntary Euthanasia Society is determined to use advance decisions to weaken our legal prohibition against euthanasia, and I feel that the form in which advance decisions are included in the Bill will give it a helping hand. It is interesting that the society has been strangely silent all through the passage of the Bill.

Photo of Brian Iddon Brian Iddon Labour, Bolton South East 7:30, 5 April 2005

Does my hon. Friend agree that the publication this week of the House of Lords Select Committee report on the Assisted Dying for the Terminally Ill Bill, introduced in the other place by Lord Joffe, a member of the Voluntary Euthanasia Society, underlines the statement that my hon. Friend has just made in this House?

Photo of Jim Dobbin Jim Dobbin Labour/Co-operative, Heywood and Middleton

Yes, I agree entirely. There is a determination by the Voluntary Euthanasia Society to make sure that that Bill, introduced in the Lords for the second time, will re-emerge at some time in the future.

My amendment was drafted by Professor Finnis, a professor of law at Oxford university and an internationally renowned authority on these matters. Obviously the Government believed that he was a competent witness, as it were, because they happily engaged with him in the preparation of clause 61, and he was happy to take part in that discussion. Professor Finnis argues that if we approve the Bill without closing the loophole, the Bill will carelessly introduce a new culture of prescribing death by the artifice of arranged and managed omissions. That is the view of the person who helped to draft the declatory provision in the first place.

The Archbishop of Cardiff said:

"Professor Finnis and I believe that a further amendment is still needed to ensure that the Bill confers no authority on expressly suicidal advance decisions. We therefore strongly support efforts of Members of both Houses who are seeking to introduce an amendment to exclude decisions from being given validity or authority by a Bill where they have a purpose of bringing about death or are motivated by a desire of doing so."

I had a letter today from Archbishop Peter Smith which backs up that statement. He added:

"I very much hope the government will reconsider its opposition to inserting such an amendment, which we firmly believe can be made without affecting the jurisdiction of the courts affirmed in the Bland case."

That, too, is a very clear statement that there is no wish by the hierarchy or Professor Finnis to overturn the Bland judgement; the amendment would not do that. Professor Finnis was asked to draw up the amendment on the basis of that being the case, and that is what he has endeavoured to do.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

My hon. Friend said some moments ago that he believed that clause 61 did not protect people in the case of an advance directive. Will he explain why he thinks that is the case? My reading of the clause is completely the opposite.

Photo of Jim Dobbin Jim Dobbin Labour/Co-operative, Heywood and Middleton

That is the legal advice that I have been given, and I understand that it is also the Government's position—perhaps the Minister will want to clarify that later.

The amendment would not force doctors to keep treating a dying, unconscious patient where the treatment was futile and even where the family expressed the wish for the patient to die peacefully at home. By contrast, the amendment would not prevent doctors from giving palliative treatment to a dying patient if foreseeably that might shorten the patient's life. We have had a superb example of that in recent days. In his last days, the Holy Father displayed the true meaning of dying with dignity. He did not ask for all the stops to be pulled out to keep him alive; he even declined to return to hospital, preferring to die at home, at the Vatican. He demonstrated that those of us opposed to any weakening of the legal prohibition and assisted suicide are not vitalists, and I hope that the Minister will acknowledge that today.

Without the amendment, we have only clause 4(5), the best interests provision, which prevents anyone, in considering a person's best interests, from being motivated by a desire to bring about death, but the clause does not apply to advance decisions, as the Government have made clear. Without my amendment it would be possible under the Bill for an expressly suicidal advance decision to be legal and binding on the doctor with care of the patient.

Throughout discussion of the Bill, I have not doubted the Government's good intentions, but good law is far more important. In addition to the loophole that I have already identified, there is nothing in the Bill to deal with a dangerous situation such as the one we witnessed in the United States last week in the Terri Schiavo case, where the attorney had a vested financial interest in the incapacitated patient's premature death. We do not want to get into such a situation, but if the Bill is not amended we shall be starting down that dangerous road. It is not too late for the Government to amend the Bill, and many people up and down the country, who are closely monitoring today's events, will be sorely disappointed if the Government fail to respond appropriately.

I accept your ruling about a vote on my amendment, Mr. Speaker. In that event, I should seek powerful reassurances from the Government that all the concerns that I have raised in my speech be taken into consideration and covered in some detail.

Photo of Tim Boswell Tim Boswell Shadow Minister, Work & Pensions and Welfare Reform, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Work and Pensions)

It would be redundant and tedious for the House if I were to go on at length about the difficulties in which the Government have put us by their choice of the programme motion that the House has just passed. It is a matter of record that after the most exhaustive consideration in the other place, including three hours on Third Reading—when, as the Minister knows, the convention is to move and consider amendments—it has fallen to us to consider a huge range of Lords amendments, and amendments proposed thereto, in a mere hour. That has put the House in a difficult position.

I genuinely have not reached a final conclusion about my course of action at the end of the debate, so it would help me if the Minister could give the House two assurances. He needs some time to explain his position. First, will he tell the House straight that in his considered view there is no possibility of euthanasia by omission in any circumstances under the Bill? My second fundamental concern relates to the issues raised by Jim Dobbin when he spoke about his all-party amendment. Will it be possible to conclude a valid advance directive, on which there would be an implied obligation to act, by somebody with a suicidal motive? I am not legally informed, and it seems that there is a clash of legal opinion on the matter, but it is my understanding that, if somebody—as in any other case—sought to take suicidal action, it would invalidate such a decision. Furthermore, if somebody were to assist them in complying with that apparent advance directive, that would still be tantamount to assisting suicide and would be covered by clause 61. It is terribly important that the Minister clarify that.

Bearing in mind the downside—that unresolved issues in the Bill could lead to its fall and that there would be real drawbacks if it were aborted because of these continuing concerns—the Minister owes it to the House to get things absolutely straight so that we can consider his assurances and take appropriate action.

Photo of Claire Curtis-Thomas Claire Curtis-Thomas Labour, Crosby

I am grateful for the opportunity to speak on the Lords amendments. I shall centre my comments on amendment (b) to Lords amendment No. 24, tabled in my name and that of many other Members.

I was present on Second Reading and privileged to sit on the Standing Committee that scrutinised the Bill. I am pleased that some of the concerns that we expressed in the Chamber and in Committee were accepted by the Lords and are reflected in their amendments. I am pleased that we have moved to written advance directives. That is immensely important and provides huge reassurance, but I am deeply concerned about our failure adequately to address advance directions and the admissions within that.

It is still possible for an individual to specify in an advance directive that they do not wish to receive food or water. That individual is essentially giving other individuals the right to kill them either through hunger or dehydration. Neither method of death is humane. We would not tolerate them for an animal, nor for any other people in society who are fit, able and capable of deciding for themselves, but it seems that we will tolerate those methods of death for the most vulnerable of all in our society.

For those reasons, I cannot agree to the Bill, which does not afford protection to people in that position. While people are incapacitated and in that state, they cannot stand for themselves, but others will. I personally would not want to stand by and see someone die of starvation. I would not want to see them die of dehydration. I would go to court to say, "If the Government have given licence to this individual to die using the method of starvation or dehydration, I want to challenge that because it is inhumane." It would not be right for me as a family member, an advocate, a deputy or a friend to stand by and watch that happen. If the Government have allowed that individual to exercise that right, why should they decide the means? Why should they decide the time? If that individual elects to die, why should we not allow them to do so in the manner of their choosing and at a time of their choosing? That is why, as the clauses that relate to advance directives have not been amended, it is effectively euthanasia by omission.

I agree with Mr. Duncan Smith that the House will have to deal with the issue again. Just as the Bland judgment brought us to this point with the Bill, we will be brought back and asked to codify the law.

Photo of Claire Curtis-Thomas Claire Curtis-Thomas Labour, Crosby

I hope that my hon. Friend will forgive me, but I want to continue.

We will be asked to codify the decisions made by the courts. Who could resist an argument that rules out death by starvation or dehydration? Certainly, I do not think that any hon. Member would want to see such a provision remain. That will be on the statute book and we will be given a clear choice: it is either that or death by lethal injection at a time of the individual's choosing. That is where we will end up. I do not want to go there—it is the wrong place to be. This is the wrong Bill to achieve that purpose. If the Houses of Parliament want to discuss euthanasia, let them do so openly. The Labour party is being whipped on this issue. I find that personally very objectionable. The Bill should not be whipped.

I may remain deeply concerned about the Bill and its impact. I do not doubt for a moment the numerous benefits associated with the Bill, and they are long awaited. I openly welcome and embrace many of the measures, but we have made a serious mistake. It is not too late for the Minister to accede, although I have received no indication that he will, so I await with interest the first judgments that we will receive from the courts. The Voluntary Euthanasia Society has been quiet, because it expects to go to court with this issue.

I will resist any further temptation to legalise euthanasia by omission and I ask colleagues and my hon. Friend the Minister to embrace the comments made earlier by my hon. Friend Jim Dobbin, to try to take on board some of the deep reservations that we still have and to afford those individuals who depend on us most the sort of care and concern that we all have for them but have expressed in different ways this evening.

Photo of Paul Burstow Paul Burstow Shadow Secretary of State for Health

I pay tribute to Mrs. Curtis-Thomas and hon. Members on both sides of the House for the way in which they have pursued their concerns about aspects of the Bill during its passage. I certainly echo the comments of Mr. Boswell about the adequacy of the time that we have tonight to do justice to those concerns. However, anyone who has read the proceedings of the other House's consideration of the Bill and the detailed exchanges of views that took place among those with legal and medical backgrounds cannot fail to have been impressed by the way in which the other place considered the legislation and diligently advanced the improvements to it that are before us tonight. The Bill has been significantly improved by that process.

On Report, I added my name to several amendments tabled by Mr. Duncan Smith about the question of purpose. Having read and studied the matters considered in the other place in some detail, the amendment that he has tabled tonight raises other concerns.

I was especially struck by an exchange on Report in the other place on 15 March. My noble friend Lord Carlile put seven points to the Government, two of which were referred to by the hon. Member for Daventry: whether the Bill could be stretched in such a way as to allow euthanasia—voluntary or otherwise—by the back door or through the front door, and whether it could allow assisted suicide and whether advance directives could allow someone with suicidal intent to use the Bill for that purpose. The answers to those questions are set out in great detail at column 1278 of the relevant Hansard, so I urge hon. Members who still have worries to study it. I hope that the Minister will be able to reaffirm what was said in the other place.

Advance decisions are important and clearly still cause concern. They cannot require doctors to do anything and would not require them to do anything that would aid and abet a suicide. English law is clear that no person can ask for assistance in committing suicide by refusing treatment, but the Bill puts into statute the common-law right to refuse treatment. The important thing is that the Bill errs on the side of life. It protects doctors. If doctors had any doubt about the state of mind of individuals when they wrote their advance decisions or when they lost capacity, or if medicine had moved on so that things of which individuals were not aware became possible, doctors could step in and act to safeguard life. Surely we should celebrate that as a way in which the Bill has moved forward.

I was struck forcefully by an example cited in the other place about Jehovah's Witnesses, who, on the ground of strongly held convictions, refuse blood transfusions. They may do that while they have capacity, but if several of the amendments tabled tonight were accepted, they would not be able to have their views, wishes and values—their belief system—respected through the treatment that they received if they lost capacity. If they had a car crash, someone else could decide, against their belief, that they should have a blood transfusion. We are talking about the right of individuals to refuse treatment, or their personal autonomy. We must be careful when we encroach on people's autonomy, although I think that the Bill tries to avoid doing that by carefully constructing a framework to safeguard the individual.

Photo of Edward Leigh Edward Leigh Chair, Public Accounts Committee, Chair, Public Accounts Committee 7:45, 5 April 2005

If it is true that the Bill errs on the side of life, does the hon. Gentleman agree that there would thus be absolutely no harm in accepting the amendment tabled by Jim Dobbin, because that would mean that the Bill would say that an advance directive could not be used to lead to a situation in which a person would not be given life-sustaining treatment in the form of fluid or another substance? Why not put that provision in the Bill? Surely Mr. Burstow accepts that.

Photo of Paul Burstow Paul Burstow Shadow Secretary of State for Health

I shall listen carefully to what the Minister says in response to that amendment

Photo of Paul Burstow Paul Burstow Shadow Secretary of State for Health

Surely listening carefully to an argument and then coming to a conclusion is what we should be doing in this place. That is what free votes are all about, and a free vote is what my party is having on this matter. I shall listen to the Minister's response to the reasoned and reasonable arguments made by the hon. Member for Heywood and Middleton. My concern is that the way in which the amendment is formulated sows the seeds of confusion where there is currently no confusion in law. That is why I am not convinced that the amendment should be supported and currently I do not intend to support it. I shall listen to what the Minister has to say. That is not an unreasonable position to adopt.

Photo of Gerald Kaufman Gerald Kaufman Chair, Culture, Media and Sport Committee

The hon. Gentleman says, and in my view it cannot be disputed, that if, say, a Jehovah's Witness—a sentient person—refuses a blood transfusion, that is a conscious act by a sentient person and it is perhaps equivalent to suicide. However, we are not dealing with suicide as such. We are dealing with what happens if a Jehovah's Witness refuses a blood transfusion for his or her child, which is a very different matter from an adult sentient person refusing medical treatment out of conviction.

Photo of Paul Burstow Paul Burstow Shadow Secretary of State for Health

As I understand the legislation, that would not be possible in those circumstances. I hope that the Minister will confirm that.

The amendments tabled by the right hon. Member for Chingford and Woodford Green are well intentioned and I understand them entirely, but clause 4(5) deals with the matter in a way that enables us not to confuse English law. By using the word "purpose", we would inadvertently put into law a provision that could have the effect of criminalising an act that we all want to happen—that is, the act of giving palliative care and providing assistance and pain relief at the end of life. The amendments might make that unlawful.

The Bill contains so much that is good and important about a person's quality of life and their right to lead their life as they choose that it should make its way on to the statute book today. However, I hope that the Minister can respond to the many concerns that have been aired during this short debate.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

I wish to cover two matters: the issue raised by my hon. Friend Jim Dobbin, and the assertion made by my hon. Friend Mrs. Curtis-Thomas. If I misrepresent my hon. Friend's views, I am happy to be corrected by her, but the burden of her argument seemed to be that it is always, in every circumstance, in a patient's best interest to receive food and hydration. I think that that was her point.

Photo of Claire Curtis-Thomas Claire Curtis-Thomas Labour, Crosby

No. I do not wish to imply that every person, irrespective of their state, should receive food and fluid, only that people who are living with a condition should do so. When someone begins to die and food and fluid become burdensome, they should be withdrawn. However, if the person is not dying and has no other threatening condition, but needs only food and fluid to survive, that person should receive food and fluid.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

I am grateful to my hon. Friend for that clarification, but I think that that formulation would lead to enormous confusion. At some point, someone has to decide when the provision of food and fluid is in a person's best interest and when it is not. My other problem with that argument is that, having listened to medical evidence, like many other hon. Members, I am aware that the pain and suffering of patients with certain conditions can be aggravated by hydration in particular.

The second point that I wanted to make is in response to an issue raised by my hon. Friend the Member for Heywood and Middleton—that clause 61 does not apply in cases where there is an advance directive. That is not my reading of the position now that the Bill has been amended by the House of Lords. I do not know where my hon. Friend is getting his advice from, but I suspect that he is wrong in this instance. I should be grateful if the Minister could confirm that my interpretation of the position—that clause 61 would override the circumstances that my hon. Friend describes—is right, or whether my hon. Friend is right.

Secondly, does the Minister accept the burden of the argument of my hon. Friend the Member for Crosby about food and water? Would there be circumstances where people would feel it absolutely necessary to go ahead with feeding or hydrating people through tubes even though it would not necessarily be in their best interests?

Photo of Gerald Kaufman Gerald Kaufman Chair, Culture, Media and Sport Committee

We recognise that these are agonising issues. Recent events in the United States, which we have seen on television, have shown just how agonising these issues are. They are not simple issues, but there is a simple issue behind what some of us seek to achieve, which is to prevent legislation that would allow euthanasia by the back door. That is what has motivated my approach to the Bill from the beginning.

I am baffled by the way in which the Government have handled the Bill from the beginning of its passage through Parliament. If I am fortunate enough to be re-elected in four weeks' time, I shall have sat in the House a few weeks after that for 35 years. Never have I known a Government handle a Bill of this sort in this way. To begin with, no Bill that I have been involved in, dealing with issues of this kind, has been whipped. It has been a tradition of my party—I am not interested in how the other parties conduct themselves—that on issues of conscience such as capital punishment, gay rights or abortion, we are not whipped.

I pleaded with the Government, both at meetings of the parliamentary Labour party and at private meetings with the Chief Whip, not to whip us on this Bill. It is still beyond my understanding why we are being whipped. It is totally beyond me. Yet we are proceeding with the Bill and with the aspects with which Mr. Duncan Smith is dealing in his amendments, on the basis of an extraordinary preoccupation that it is vital, in the dying stages of this Parliament, with only a few days left, that this piece of legislation survives.

This is not a Labour Bill—it did not originate within the Labour party. It is not a manifesto commitment. The Bill originated 16 years ago under the previous Conservative Government as an omission by the Law Commission. For some reason, it has now surfaced as a piece of legislation that a Labour Government, working hard to get themselves re-elected for an historic third term, believe is essential and should receive Royal Assent.

Photo of Kevin Barron Kevin Barron Labour, Rother Valley 8:00, 5 April 2005

Besides the issue of the Whip, is not the answer that people outside the House who have worked with people with mental incapacity for the past decade or more have been waiting for legislation of this breadth to come along, to give those people the rights that society has denied them for far too long?

Photo of Gerald Kaufman Gerald Kaufman Chair, Culture, Media and Sport Committee

I accept every word that my right hon. Friend says when he refers to the breadth of the legislation. Every one of us has received letters this week from esteemed charities saying that they want the Bill to become law, and I am not arguing with my right hon. Friend about that. However, he rightly suggests that this is a matter of conscience. This ought not to be a matter of contention between political parties; it should be a matter of honest and respected disagreement between right hon. and hon. Members of the House.

Photo of Kevin Barron Kevin Barron Labour, Rother Valley

If the Bill were about putting euthanasia on to the statute book, is it not the case that we would have a free vote on it?

Photo of Gerald Kaufman Gerald Kaufman Chair, Culture, Media and Sport Committee

That depends on how we interpret it. The fact is that, when the Bill came before the House of Commons last December, and when we were dealing with the very issues on which the right hon. Member for Chingford and Woodford Green has tabled his amendment, the Government were so concerned that it should not be defeated that we got the exhibition of correspondence between the Secretary of State for Constitutional Affairs and the Archbishop of Cardiff being circulated among Labour Back Benchers—something else that I have not seen before in my 35 years in the House. I have never known anything like that to happen on an issue of conscience. What that told us was that the Government had accepted, very belatedly, that this was an issue of conscience. In order to seek to assuage the consciences of a considerable number of Labour Members, they circulated that correspondence. That day, the Prime Minister is said to have been on the telephone to the Cardinal Archbishop in an effort to get an agreement with him that would persuade right hon. and hon. Members on this side of the House.

I do not want the Bill to fall, but I recognise the concerns that are being expressed. Many of us have personal experience of these matters. I had a sister who died after having suffered from Alzheimer's disease for many years. I have an elder brother who does not know me when I go to see him; he, too, is suffering from Alzheimer's. My sister's son and my brother's daughter are loving children. Fine, but we cannot assume that, in a situation relating to the amendment that we are now considering, my nephew and niece would be typical. That is why we have sought the safeguards that we are debating this evening.

I accept that improvements have been made to the Bill in the House of Lords. That cannot be denied. After all, the right hon. Member for Chingford and Woodford Green is tabling an amendment to a Lords amendment. If we compare the Bill with the one that left the House of Commons in December, there is no doubt that it has been improved. However, it still contains this loophole, which causes a twinge of agony to many of us who understand the circumstances in which these decisions might well be made. That is why what my hon. Friends the Members for Heywood and Middleton (Jim Dobbin) and for Knowsley, North and Sefton, East (Mr. Howarth) are saying is important. They are disputing a matter of ethics that impinges on the very nature of human life. What I want to hear from the Minister is either that the contents of the letter from the Archbishop of Cardiff to my right hon. and learned Friend the Lord Chancellor have been effected to the Archbishop's satisfaction, or a clear and specific assurance that will assuage hon. Members' consciences because we are considering a clause and an amendment about conscience. We are considering human life and the deepest single issue that relates to human beings.

Photo of Edward Leigh Edward Leigh Chair, Public Accounts Committee, Chair, Public Accounts Committee

On a point of order, Mr. Speaker. We are listening to an interesting speech, but we have less than 12 minutes to hear from the Minister. Can we get on to the Minister's speech as quickly as possible?

Photo of Gerald Kaufman Gerald Kaufman Chair, Culture, Media and Sport Committee

I apologise to Mr. Leigh; I was not looking at the clock and I did not note when the debate was due to end. However, the hon. Gentleman is right that it is essential to hear from the Minister before reaching a decision. I shall therefore sit down, but I hope that the Government take account of the fact that people feel very uneasy at this stage of the debate.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

When we considered the Bill on Report, concerns were expressed about attorneys and deputies and people who would seek to harm those at the end of their lives. Along with my noble Friend the Lord Chancellor, I undertook to continue dialogue with the Catholic Church and specifically Archbishop Peter Smith. Much has been said in his name tonight and I want to assure hon. Members that amendment No. 4, which proposes a new subsection (5) to clause 4, goes to the heart of the points that he made. He was quoted in Committee in the other place on 25 January 2005 and also said in a letter to my hon. Friend Jim Dobbin that proposed new subsection (5),

"makes it explicit that the Bill does not give authority to doctors, proxies or other third parties considering a patient's best interests to make any decision that is motivated by a desire to kill the person."

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

In a moment. The concerns that have been expressed in the debate today relate not to the best interests aspect of the Bill but to advance decisions. That is all that is left for the House to determine. We should remember that it is possible to make an advance decision now—that fact was lost in some parts of the discussion. An advance decision does not mean electing for suicide. The Government stand firm on suicide and have continually made that clear. We did that in relation to clause 58 and best interests and in the context of advance decisions.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

Let me finish. One can make an advance decision now. The House has to decide whether to vote for the additional safeguards on advance decisions for which the Bill provides or to retain the current position, with no safeguards. Let me list those safeguards because it is important to set them out. First, importantly, under this Bill, if a doctor is not satisfied, he can decide that he will not accept the advance decision as valid and applicable. We therefore either vote to give the doctor that right, or we leave it, and doctors will not have that security.

Photo of Helen Jones Helen Jones Labour, Warrington North

I am listening carefully to what my hon. Friend has said, and I accept his view that this Bill has been much improved in the House of Lords. Will he address, however, the issue raised by my hon. Friend Jim Dobbin in relation to ensuring that we prevent advance directives containing suicidal intentions from being carried out? If, as the Minister said, that is the Government's intention—I accept his honest view on that—what is wrong with accepting the amendment tabled by my hon. Friend the Member for Heywood and Middleton?

Photo of Jim Dobbin Jim Dobbin Labour/Co-operative, Heywood and Middleton

I just want to follow up with the rest of the letter. The archbishop goes on to say:

"But this amendment still leaves a major gap. It does not cover advance decisions. The clauses dealing with advance decisions, although tightened up, still leave open the possibility that an expressly suicidal advance decision is binding".

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

As I was saying, doctors cannot now be forced to accept advance decisions, because, under the Bill, if they are not satisfied, they do not have to do so. On the point raised by my hon. Friend Helen Jones, the Bill states specifically that someone must have capacity and be able to weigh information. Someone who is suicidally motivated cannot legally do those things—

Photo of Bill Cash Bill Cash Conservative, Stone

On a point of order, Mr. Speaker

Photo of Bill Cash Bill Cash Conservative, Stone

It is indeed. The Minister has just been referring to issues that he claims have been raised by the Archbishop of Cardiff, which is not the case. He is using that as evidence against a professor of law—

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

In addition, there are provisions under clauses 25(5) and (6) of the Bill in relation to the person who elects to have an advance decision. Let us be clear that the Government are not saying that people must have an advance decision; we are accepting that there are those in our community who want to make advance decisions and refuse certain types of treatment. We are accepting that Jehovah's Witnesses, Christian Scientists and all sorts of people want to make that decision. That is why the Bill is supported by the Alzheimer's Society, Age Concern, Mencap and the mental health community, who have written to all Members of the House to argue for the Bill. They have said that it is necessary.

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

I realise that we are short of time. Let me make sure that the Minister clearly understands the amendment tabled by Jim Dobbin. If the Minister says that the Government's determination and intention is that advance decisions should not represent suicidal intentions, all that he has to do is amend the provision as follows:

"a decision or statement complies with this subsection only if"— the amendment says—

"it does not state a desire to bring about P's death by forgoing that treatment".

Why is that so hard to do if, as he says, that is the Government's intention?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I would have thought that that was patently obvious. The reason is that that would force people to stay and die in hospital—[Interruption.] It would mean that people cannot elect to die at home. That would be the consequence—

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission

Order. The right hon. Gentleman has had a good say in this debate. He must allow the Minister to speak without interruption.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

There will always be a difficult balance between personal autonomy—the person's right to say, "No, thanks, not for me"—and having the right safeguards governing that, to allow doctors to say, "I am not satisfied", and to ensure that someone has all their mental faculties and is capable of making their decision.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

Our further amendment today says that where someone recognises that the risk is to their life, they must make a further statement that is written and witnessed.

On all those counts, while the law makes it clear that we do not support assisted suicide—Members will remember the Diane Pretty case, which went to the European Court of Human Rights and was effectively thrown out—I urge Members who are concerned about advance decisions and would not choose to make such decisions themselves, but who want to ensure that safeguards exist, to vote for the Bill. They will be ensuring that doctors can make the decision, and that it is in writing that people can make an advance decision only when they are capacitated. On that basis, I commend a Bill for which we have waited 15 years, and for which outside organisations are campaigning.

Question put, That the amendment to the Lords amendment be made:—

The House divided: Ayes 98, Noes 240.

Division number 151 Mental Capacity Bill — Clause 2 — People who lack capacity

Aye: 97 MPs

No: 239 MPs

Aye: A-Z by last name


No: A-Z by last name


Abstained: 1 MP

Abstained: A-Z by last name

Question accordingly negatived.

Motion made, and Question put, That this House agrees with the Lords in the said amendment.— [Mr. Ainger.]

The House divided: Ayes 269, Noes 68.

Division number 152 Mental Capacity Bill — Clause 2 — People who lack capacity

Aye: 269 MPs

No: 68 MPs

Aye: A-Z by last name


No: A-Z by last name


Question accordingly agreed to.

Lords amendment agreed to.

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission

I draw the attention of the House to the fact that privilege is involved in Lords amendment No. 69. If it is agreed to, an appropriate entry will be made in the Journal.

Question put, That this House agrees with the Lords in their remaining amendments.

The House divided: Ayes 236, Noes 51.

Division number 153 Mental Capacity Bill — Clause 2 — People who lack capacity

Aye: 236 MPs

No: 51 MPs

Aye: A-Z by last name


No: A-Z by last name


Question accordingly agreed to.

Lords amendments Nos. 2 to 95 agreed to [one with Special Entry].