Baroness Cass:

Moved by Baroness Cass

122: Clause 4, page 2, line 24, at end insert “and a Voluntary Assisted Dying Director”Member’s explanatory statementThis Amendment and other amendments in the name of Baroness Cass seek to separate the role of Voluntary Assisted Dying Director and Voluntary Assisted Dying Commissioner, and are intended to address the existing position of the Voluntary Assisted Dying Commissioner in the bill which is responsible for the monitoring and assurance of the Act, whilst also having a role in its operational delivery.

My Lords, I will be brief, because I believe that my Amendment 122 and the consequential amendments that follow it address a very straightforward and practical issue—saying that could be the kiss of death, but never mind. It is absolutely self-evident that, if this Bill passes into law, the monitoring of its implementation will be absolutely crucial.

There are several aspects of implementation that we will need to follow closely. The first is any evidence of the concerns that have been widely expressed in this House of coercion, particularly to take account of differentials in the socioeconomic circumstances of those seeking assisted deaths. Secondly, we need to be aware of postcode lotteries in implementation and particular challenges in staffing and delivery in certain localities. Thirdly, we need to be aware of creep, as has occurred in other jurisdictions.

In a later amendment, I have proposed that voluntary assisted dying services should be commissioned by the specialised commissioning team currently located in NHS England. This team commissions highly specialist small volume services, and the assisted dying services would fall within this definition. The advantage of this approach is that there would be a national service spec, nationally defined workforce requirements and quality standards, and monitoring of the contract by the national team.

In late January, the noble and learned Lord, Lord Falconer, notified us of his planned amendments to ensure that the service will be regulated by NHSE or the CQC, or both. However, it is not yet clear how that might work in practice. This leaves us with the currently proposed arrangements in Clause 4, in which the voluntary assisted dying commissioner has a dual role. He or she is required to take on much of the operational delivery of the process and, at the same time, monitor the operation of the Act and report on it to national authorities. I submit that it is not appropriate for the commissioner to be both poacher and gamekeeper and to mark their own homework, because they will be mixing their roles as shamelessly as I have just mixed my metaphors.

My amendments therefore seek to separate the role of the commissioner, to make it much more like that of the Children’s Commissioner, who is fully independent from the agencies she has oversight of, with a director to undertake the delivery aspects of the work. These may or may not be the finally agreed terms or mechanisms, but I think the intent is clear, and I leave it open to both the noble and learned Lord the sponsor and other noble Lords to discuss other ways in which this separation of roles might be achieved.

My only other point is to draw attention to my Amendment 131, which makes it clear that, although the commissioner is supposed to be an individual who has held high judicial office, neither the commissioner nor the director is discharging a judicial function in undertaking their responsibilities under this Act. On this point, I am just a warm-up for the noble Lord, Lord Weir of Ballyholme, who will doubtless speak further to his Amendment 129 on this aspect. I beg to move.

I will speak briefly to my Amendment in this group because it is my duty shortly to chair the Committee. To broaden the debate that the noble Baroness, Lady Cass, introduced, I simply say that there is clearly a need to establish that this post can have confidence and a degree of consensus around it. I am not sure that that has been achieved by what has been proposed so far.

My amendment simply brings in the procedure used in the Commons for most regulatory posts: they are the subject of some sort of hearing process by the relevant Select Committee. That system was developed in the years when I was in the Commons, and as chair of the Justice Committee I operated it several times. It works reasonably well. In rare cases, the Treasury Committee, for example, has a veto on the appointment, as this amendment suggests, but it is a means of trying to ensure that the right questions are asked at the right time when appointments are made. Surely, after recent weeks, we have learned the lesson that, if you do not have proper scrutiny of appointments and a system in which the right questions are asked, things can go very badly wrong. We certainly do not want them to go badly wrong in this area. That is sufficient to explain what my amendment is about.

My Lords, I am grateful that the noble Lord was able to introduce his remarks before he has to go and perform his functions as chairman of the Committee. I have only a few things to say, and my Amendment is discrete, in the sense that it does not really affect much of the rest of the Bill. It can be taken quite briefly, and I hope that the noble and learned Lord, Lord Falconer, will be able to agree to it, not least because it bolsters the job that he once held.

With respect, I disagree with only one point that the noble Baroness, Lady Cass, made. The function of the commissioner is not simply administrative; there is a judicial element to their work, which is found in Clause 4(4)(d). One of the principal functions of the commissioner is

“determining applications for reconsideration of panel decisions under section 18”.

That said, I fully accept that it is a mixed-function job: it is partly administrative and partly judicial—but then so are quite a lot of senior judicial jobs. The Lord Chief Justice and the Master of the Rolls all have heavy administrative burdens as well as having to perform a judicial function, and no one would suggest, I venture to say, that those people should be appointed directly by the Prime Minister.

It is more constitutionally appropriate for the voluntary assisted dying commissioner to be appointed, as so many other judicial and quasi-judicial posts are, by the sovereign on the recommendation of the Lord Chancellor. I appreciate that the office of the Lord Chancellor has changed a lot since the 2005 Act—more’s the pity, in my view, but there we are. That was a long time ago. When I become Prime Minister, of course, I shall have it changed.

There is a nice distinction to be drawn with the appointments made in the way that I suggest. If my amendment is accepted by the Committee or by the House as a whole, it will obviously have a knock-on effect on the appointment of the deputy commissioner under paragraph 3(1) of Schedule 1—but let us not delay ourselves with that. All I am saying is that it is more appropriate for this particular function to be appointed by the sovereign on the advice of the Lord Chancellor, as so many similar posts are.

A Minister responding for the Government in the other place said that the investigatory powers commissioner is appointed by the Prime Minister, and he, like the assisted dying commissioner, has to be a sitting or retired member of the senior judiciary. But that is a false point. The distinction between this job and the investigatory powers commissioner is that the investigatory powers commissioner deals with matters of national security—which are essentially a matter for the Prime Minister—whereas this assisted dying commissioner will deal not with matters of national security, foreign policy or anything of that nature but simply with the workings of this Bill, or this Act as it may yet become.

This a very short and simple point that I am sure the noble and learned Lord can easily agree with, because it does not damage the Bill. It is simply a technical adjustment of the route to appointment, and I urge the Committee to support it.

My Lords, I will speak to three amendments in this group, two of which stand in my name. The third is Amendment 128 in the name of the noble Baroness, Lady Foster, which I have co-signed and will touch on briefly now.

Amendment 128 is essentially probing in nature. The Bill lists the principal functions of the commissioner—we do not take particular exception to that—but does not outline their specific duties, so we feel that there is a bit of a gap at present and are probing whether the duties are correct and whether the commissioner has a role in ensuring effective oversight. I look forward to hearing the response of the Bill’s sponsor on that.

I move on to Amendment 129, following on from the remarks of the noble Baroness, Lady Cass. When I arrived today I did not anticipate that she would be my warm-up act in relation to the amendment—I thank her for her remarks. The amendment essentially deals with whether the commissioner should be required to be either a senior judge or a retired judge. In part it also has a slightly probing quality, and again I will listen to the remarks of the Bill’s sponsor. Given where the passage of the Bill has gone so far and where it might land—the situation is slightly fluid—and although I appreciate that, for instance, the noble Lord, Lord Carlile, has made suggestions on how we could inject a level of judicial introduction to the panels, we will probably be keen to press this on Report if the issue is not resolved and we are left with the current situation.

The reason for that is that when the Bill was introduced in the Commons, one of its core elements was the judicial function and, indeed, judges on the panels. That was one of the great selling points of the supposed—and slightly self-proclaimed, I have to say—safest Bill in the world. But that position has been resiled from and, although I am sure that the Bill’s sponsor will give reasons for it, we have moved away from that core element. If we do not have that core element of a judge on the panel, do we leave a situation in which the commissioner has to be either a senior serving judge or a retired judge? Would that create a veneer of judicial impact when the core element has been taken out?

That is all the more appropriate when we look at the functions that have been listed for the commissioner, of which there are five under Clause 4(4). Paragraphs (a) and (b) relate to “receiving documents” and compiling a list of eligible panel members. It is hard to see why those functions, which are essentially administrative in nature, would require a level of judicial input. Similarly, paragraph (c) relates to

“making arrangements in relation to such panels”.

Again, that function lies largely within administrative competence rather than requiring any element of judicial quality.

The one area that does touch on that, as has been highlighted, is paragraph (d), which talks about the reconsideration of cases, but cases are not to be reconsidered on their own merits. The Bill’s sponsor in the other place, Kim Leadbeater, said that the commissioner is

“not acting as a judge”,

so there is a query about the level of judicial impact even of paragraph (d). Finally, under paragraph (e) there will be a monitoring role, particularly as regards medical statistics. There is a question mark in relation to that. If we are looking for somebody to undertake that role, which I think was initially put within the remit of the Chief Medical Officer, it seems to me that a medical professional is much better suited to it. There are queries about the applicability and whether we are simply creating a façade of judicial involvement by having the requirements currently in the Bill.

My Amendment 496C would afford a person, if they desire it, the opportunity of a hearing before the commissioner, rather than their case being decided by a paper hearing. That would cover aspects such as someone being registered disabled under the Act, the availability of communication, cognitive impairment and mental distress, in the interests of justice.

We very much take on board the remarks of the noble and learned Lord, Lord Falconer, and others, who have indicated that we are dealing with people who may be in the very latter stages of illnesses, and as such their physical movements may be limited, which is why the amendment would specifically enable a remote appearance, so there is no question of someone having to go in for a hearing. We know that there is a lot of concern out there among disabled groups, and this is one aspect of concern to them. There can be great advantages in giving an applicant the opportunity to be seen and heard. We know, for example, that it would enable the commissioner to test out whether there has been any level of miscommunication or misunderstanding, and to detect whether the person has a level of motivation or the feeling that they are a burden, or indeed whether there has been a level of coercion that has gone unnoticed up to that point. That is the advantage of giving the opportunity for a hearing.

The UN human rights expert report on disabilities says that there can be barriers in terms of communication and accessibility for disabled people, and that a failure to adapt procedures to deal with those issues can lead to a form of de facto discrimination. That point has also been highlighted, in relation to similar legislation, by the Scottish Human Rights Commission, which has talked about the need for accessible communication and decision-making support to ensure that any request is genuine, and said that paper-based procedures can disadvantage people with cognitive, sensory or communication impairments, unless they are adapted. Amendment 496C seeks a level of reassurance and adaptation. Giving the applicant that opportunity would preserve the idea of autonomy.

I look forward to the Bill’s sponsor answering those queries. I am sure he will do so in a very kind, elegant and eloquent manner. I do not necessarily have a great deal of hope that he will adopt the amendments, but I look forward nevertheless to hearing his conclusions on my remarks.

My Lords, I will introduce Amendment 144A in my name. It is related to my other Amendments 726A and 728A, which are grouped much later and to which I do not expect to speak. I draw attention to my registered interests.

When I was at the Winton Centre in Cambridge, I led a team that produced information for patients in the NHS, and I am still involved with that. That experience underscores Amendment 144A, which has the support of the BMA. It would make the assisted dying commissioner responsible for the provision of the personalised and balanced information that patients require when making their end-of-life decisions under the Act. I know how much is involved in producing that information, how carefully it needs to be done and how controversial it can be. It therefore needs to be properly resourced, and the lines of responsibility for it must be clear.

We have already had discussion about informed consent. I think we all agree that, during the process outlined in the Bill, people need to go through the process of consent, but they also need to go through the process of shared decision-making, which is different. For both shared decision-making and consent, eligible people need to be given the risks and benefits of the different options open to them—including of doing nothing. That information has to be as personalised to each patient as possible, and presented in a way that is understandable to them. It is rightly the responsibility of the doctors to give that information to patients and to check their understanding of it through talking with them, but where do the doctors get that information?

Increasingly, healthcare professionals are provided with tools to help them. Online risk calculators help to personalise information on prognoses or the chances of an event for a patient such as the one they are talking to at that moment. Decision aids bring together all the current known evidence on side-effects, represented in easily understood ways, and patients can take these away and refer back to them while considering their decision. To give an example, for benign enlarged prostate there are two main classes of medicines and at least eight different types of surgery available to patients. I do not think a single individual doctor would know the numbers for the average effectiveness and for each of the major side-effects for every one of those 10 options. Each specialist would know the figures for two or three of the options that they offered or were familiar with: enough to consent their patients for their favoured option but not enough to help the patient make an informed choice from all the options available. To do that, they need a decision support tool which has all that information, but also more than that. That is why these sorts of decision aids are needed—and I want to give the House a sense of what is involved in making them, because it is important to understanding this amendment.

When we make decision aids, we work hand-in-hand with patients and members of the public, with people with visual and learning disabilities and neurodiversity, and conduct academic research into how people interpret numbers and graphics representing them. I mentioned that the needs for informed consent and shared decision-making are different. What we find when we work with people is that, when making a decision, people weigh up a much broader range of pros and cons than simply risk and benefit numbers. The information they want is not just a percentage risk, which would tend to be what doctors would be able to tell them when doing informed consent; it is also information about how to access different options, including those available outside the NHS. They want to know what would or might happen, including what a certain test actually involves and why it is done. They want to know where things would happen. They need to know what their rights and options are about things such as their right to say no to something or to have someone else with them. They want prompts for questions that they might want to ask or consider asking, and spaces to write notes for themselves to be passed on, so they do not have to repeat themselves at every appointment. All these things in one place help people who are not feeling at their best to navigate an unfamiliar medical world and have more confidence that the decisions that they are making are the best ones for them. We know from working with patients and getting their feedback that this is the sort of information that terminally ill people will need to support them making decisions around their end of life.

I describe all this to illustrate that this information needs to be very carefully put together, and I know that it takes time. It takes about a year or so to do all the background research, design and test with a range of real patients and relatives—and possibly longer in this case, because it will need to be quite personalised and kept up to date because of the geographical variations and provisions of different options provided by different providers, such as those you find in palliative care. Of course, that time and that team doing that work will need to be funded, and the final versions will need to be approved and then kept constantly up to date. That is why I have proposed Amendment 144A, to ensure that this very important job is overseen by the assisted dying commissioner; with their legal background and the current job description in the Bill, they should have the means to request the right amount of resourcing from the Government to make sure that this information is produced to the right standard and well maintained.

I do not think anyone in this Chamber or outside would disagree that having balanced, personalised information about options in a suitable format for everybody, whatever their disabilities, is critical to this Bill—and I do not think that anyone will, having heard what that takes, underestimate the amount of work that it will entail. There will be a lot of people who might want to persuade patients rather than inform them around this decision, which makes it particularly important that official information is produced carefully, overseen and kept up to date. Currently in this Bill, it is not entirely clear whose responsibility this commissioning of information provision would be. When we make them, we are commissioned by a team within NHS England, but it does not just spontaneously happen, even within the NHS. It is unclear to me whose responsibility it will be when NHS England disbands, for example, and an assisted dying service may be outside the NHS. That is why it is important that this Bill specifically assigns this critical responsibility, and the best person—the only person with the specific ability to ensure funds—appears to be the proposed assisted dying commissioner.

My Lords, I rise to speak briefly to my Amendment 134, which is a probing amendment. The noble Lord, Lord Weir, drew our attention to Clause 4(4), which sets out what he referred to as the functions of the assisted dying commissioner. In fact, the text refers to the “principal functions”, and my amendment suggests replacing the word “principal” with “sole”. Those functions are very extensive; they are elaborated in, among other places, Schedules 1 and 2 and Clauses 16, 18 and 49. They are, as I say, very extensive. They include in Schedule 1 a general power to do anything which may be necessary or appropriate for the commissioner to do in order to be able to carry out his functions. He is not short of responsibilities and he is not short of powers to be able to carry them out, yet in the Bill these are described as his “principal” functions.

So my first question to the noble and learned Lord is: are there are any other functions? Would anything be lost by changing the word “principal” to “sole”? Does he consider that there are secondary functions that the assisted dying commissioner has? Many of us are concerned that the voluntary assisted dying commissioner could easily become an advocate for change to the framework that we are establishing in the Bill. In particular, it may be found that some requirements set out in the Bill are irksome and difficult and take time. Of course, that is quite deliberate. The noble and learned Lord has set up a structure that is not meant to be easy to navigate, quite deliberately. This is not an easy structure to navigate and it may well be that, when the assisted dying commissioner comes out with his annual report—because he has to produce annual accounts, and I am sure that the report will contain things over and above purely financial figures—he will suggest changes and relaxations, and so forth. He cannot make those changes and relaxations, mostly, on his own—but we do not want, if we establish this Bill, to which many of us are strongly opposed, an officially paid and highly regarded advocate for the relaxation of the safeguards that we have built in to be operating out there.

So I come back to the question: first of all, does the noble and learned Lord want to say whether he considers there are other functions over and above those set out in the Bill, taking account of the general power I have already mentioned? Secondly, will he give us some assurance that he does not see this role as being that of an advocate for relaxation or change?

My Lords, I shall speak to Amendments 135 and 436 in my name. These two amendments relate to one of the specific functions just elaborated by the noble Lord, Lord Moylan. Amendment 135 would create in Clause 4 a specific duty on the commissioner of ensuring that paperwork relating to individual cases is in order and of the right quality so that the process can proceed. As the amendment puts it, the paperwork should be

“present, complete and of sufficient standard”.

Amendment 436 would create in Clause 16 an elaboration of what that duty means in practice: that is, to request further and improved paperwork if it is not in order and, in particular, if any doubt exists over whether eligibility criteria are met.

Why are these amendments necessary? It is a very specific issue, clearly, but the commissioner has a function, inter alia, to receive documents, refer cases and so on, which is obviously crucial to the working of this process. As described, that function implicitly includes ensuring that the documentation is in order, but that is not made explicit anywhere in the Bill. The purpose of the amendments is to make that requirement explicit, and to create a clear legal duty on the commissioner to ensure that the paperwork is of a sufficient standard.

Is this just a paperwork or process requirement? No, it is not—I will explain why. First, the commissioner has a mandatory duty to pass paperwork to the assisted dying review panel. The existing duty requires only that the paperwork exists, not that it be of the right quality, which is self-evidently a weakness. Secondly, the panel itself has to be satisfied that the various eligibility and other requirements are met, the basis for which is the documentation. How can it be confident that it is taking a good decision if there is no process to ensure that the documentation itself is of the right quality?

Thirdly, there is obviously a particular issue if—as seems from earlier discussions to be at least possible—face-to-face elements of the process are weakened or eliminated. In that case, we will rely entirely on the quality of the documentation, so it is even more vital that the paperwork be of good quality. Fourthly, a good paperwork duty increases the chances of any systemic problems in the process becoming visible to the commissioner; for example, if certain doctors or medical practitioners consistently produce poor-quality paperwork, a specific duty would make that much more likely to be picked up.

Fifthly, let us suppose there is a criminal investigation following any of these cases. In that case, obviously, the patient—the person wishing to receive assistance, however we wish to describe them—will not be around to give evidence, so the paperwork will be the only basis on which an investigation can proceed. Again, it must be of high quality.

Sixthly and finally, there is plenty of evidence in the real world for why getting the paperwork right is so important. We in the UK, in our normal bureaucratic existence of dealing with the state, constantly find errors in our own paperwork—I certainly find such errors myself. How much more so will that be the case for people who have had psychological treatment from a range of different providers, hospitals and medical practitioners, perhaps in different parts of the country? It is easy to see how errors can creep into this process, which makes it all the more necessary to have a clear duty.

Overseas, in other jurisdictions, there is a very long list of problems with the paperwork. In the Netherlands, a recent government evaluation showed that up to 15% of assisted deaths were not even recorded in the official systems because of paperwork errors, and 1% to 2% of cases were described as “not careful”. In Belgium, a range of investigations have specifically shown reporting problems with poor documentation, incomplete assessments and missing information.

In Canada, there have been many investigations into the paperwork. Most recently, an investigation last year, based on an FoI request, uncovered significant systemic problems with the oversight system in British Columbia. It found 2,833 reporting issues and completion errors for just 2,767 deaths—more than one error per case—and an eligibility error rate of nearly 5%. Despite all those issues, only a handful of referrals were made to regulatory bodies and the police. In passing, it is perhaps worth noting that the internal documents released under the FoI request reveal that one of the officials in the system recommended that the Canadian oversight unit should not be “overly strict” in enforcing the paperwork protocols, because this “may discourage” providers from offering assisted dying.

I hope I have said enough to illustrate why it is so crucial that there is a specific legal duty to get this paperwork right. I do not think my two amendments raise huge issues of principle; they would ensure simply that the process for which we legislate one day—though perhaps not—is done properly, and that the risks we have discussed repeatedly over our 10 days of discussion are reduced to a minimum. I hope that the noble and learned Lord might look at the amendments on that basis and consider them helpful.

My Lords, my Amendment 144 relates to those tabled by my noble friend Lord Frost, who has made many of the points I was about to make. To add to what my noble friend has said, he used the word “paperwork” all the way through his remarks, and he outlined its importance. The point I would make, over and above what my noble friend has just said, is that the NHS has a notorious reputation with regard to paperwork. How many times have we heard about the loss of patients’ medical records and—as my noble friend just said—that the medical records are inaccurate?

Many hours have been spent in this House talking about the digitisation of NHS paperwork. The Bill is an excellent opportunity to say to the NHS—or whoever takes responsibility for this process—that when people go for consultations, they should be done digitally, by which I mean that we do not use a pen and paper. Doctors’ handwriting is notoriously difficult to read; it must be transcribed and digitised by second parties, so mistakes and errors will happen—that is one of the reasons why there are so many errors in medical records.

I say briefly to the noble and learned Lord, Lord Falconer, that this House should insist that the Bill requires this to be done digitally. When clinicians interview vulnerable people, that should be instantly recorded there and then on a tablet, iPad or computer, which will therefore reduce the number of errors. The paperwork is so important, and this is an opportunity for the NHS to step up to the plate and, of all things, digitise the records for people making the decision to end their life.

My Lords, I have two amendments in this group. Amendment 139 simply requires the commissioner to report to Parliament, and in Amendment 913 I have tried to ensure the independence and freedom from bias of the commissioner and staff. The voluntary assisted dying commissioner, as the public figurehead of an assisted death regime, must be free from any whiff of conflict of interest or perceived bias.

Conflicts of interest can be direct, such as the commissioner having shares in a provider of assisted deaths, when increased deaths are profitable. However, as NHS England’s standards of business conduct point out, perceived conflicts of interest can also present problems, and all interests must be declared. NHS England’s policy states:

“Officers should be mindful of any situation where relationships may give rise to a perception that a loyalty, credit, or responsibility is owed to another person or body”.

It goes on to say that

“previous employment with an employer which directly or indirectly provides services or products” could be seen to be an influential factor.

The noble Lord, Lord Weir, has addressed the functions of the commissioner; I will not repeat what he said, but I will add a few points. Appointments to panels must not be biased to those sympathetic to assisted death, and they must also avoid those who have publicly expressed some scepticism. The commissioner is to review appeals, and bias can creep in here. Failure to follow statutory safeguards could be viewed leniently, and we have already heard examples of that from the noble Lord, Lord Frost. Highlighting failures in panels would reflect badly on the commissioner who had appointed them. In reviewing and reporting on the operation, the whole regime could skew reporting, because it is not clear which stakeholder groups will be consulted, or which data will be collected and what will be omitted—again, that could leave room for bias.

The amendment simply embodies the principle set out in the Cabinet Office’s Governance Code on Public Appointments that there should be

“no conflicts of interest that would call into question their ability to perform the role”.

Can the Minister confirm that these standards would be adhered to in any appointment? The governance code states that many conflicts of interest could be satisfactorily resolved and mitigated, giving the Prime Minister much discretion. Could a mitigation allow an assisted suicide organisation’s patron to serve as the commissioner? This is not purely hypothetical. In Belgium, the joint head of the Federal Commission for the Control and Evaluation of Euthanasia was one of the leading proponents of the 2002 law there. Since then, it has euthanised more than 100 patients and become something of a celebrity. That reputation has caused controversy. We have already heard about underreporting—

Is there not a critical difference, when we talk about conflicts of interest, in that, in this case, this will be law—something that has been passed by Parliament? I do not believe that, in any public appointment, being supportive of a law of the land is deemed to be a conflict of interest.

The point that I was trying to make, and I am sorry if I have not expressed it properly, is that there is a huge amount of discretion here and the commissioner will be the person who appoints the panels. In a way, by assessing the work of the panels, the commissioner will be marking his or her own homework. That does not provide the independence that one would require.

If I may go on, we heard too in our Select Committee hearing, which the noble Lord was present at, about problems that have occurred in New Zealand. These need to be taken as a warning: we must ensure that there is independent transparency and lack of bias in the commission, through statutory safeguards, to avoid the failures that occurred in other countries. In the case of Mortier v Belgium, the European court—

I apologise for interrupting, but I am a little confused. It seems that there is a considerable principled difference between expertise and conflict of interest. People who have been involved in assisted dying have expertise; they do not necessarily have a conflict of interest. You can be a professional, as I am sure the noble Baroness well understands, and be independent, so why is expertise ruled out?

I am grateful to the noble Baroness for that Intervention, because expertise is not ruled out. It is the way that the commission functions that is important—that that does not allow skewing and silencing. What I was going on to point out is that one of the commissioners on the Belgian commission resigned because they felt that they were being silenced whenever they raised issues about problems in reporting, that they were unable to continue to provide ethically high standards and that their own expertise was not being respected.

I would be grateful if I could just continue for a moment, because I am not trying to filibuster. I would like to make that absolutely clear, following the extremely unpleasant, vicious comments that have been made about me, both in the media and in very aggressive emails that have been sent to me. If I may continue, I would be most grateful.

I am simply asking whether a commissioner with a financial interest in an assisted death business, whatever that is and however it is commissioned, is actually truly independent. There seems to be no requirement for the appointment to be scrutinised by a committee of Parliament or for a register of interest to be published. I am sure that that would happen, because that is a normal course of action in this country, but the equality impact assessment seems silent on this. The noble and learned Lord, Lord Garnier, referred to the Constitutional Reform Act 2005 in relation to appointments, so I will not repeat that, but this commissioner’s post appears, as written, to be in the gift of the Prime Minister, and there does not appear to be verified impartiality in terms of the exercise of the functions, given the great importance of this role and the problem that if it does not work well then public confidence in the system will be lost.

My Lords, my remarks follow on, very usefully, from those of the noble Baroness, Lady Finlay of Llandaff. She made some points I was going to make, so I will not make them, but I will make some others.

We should consider the interaction between the rather murky world of politics and the role of the commissioner. I would not raise that issue if this role were not entirely, as I understand it, a political gift of the Prime Minister—effectively a patronage office. We surely all know the problems that can create; it has been rather vividly illustrated in recent months. I want to probe what happens if this goes wrong, or rather how we can stop it going wrong in the first place, because there is genuine concern about a lack of accountability and transparency around the appointment process for the commissioner. For that reason, I added my name to Amendment 126 in the name of the noble Lord, Lord Udny-Lister. He is unable to be here today, but he is spot on to suggest that the appointment should be accompanied by a public statement by the Prime Minister, whoever the Prime Minister is, attesting to the suitability, independence and neutrality of the candidate, so that the Prime Minister is ultimately held to account for this appointment and it is clear why they have made it.

The commissioner has a crucial role, with the power to both run and monitor this service, yet the Bill seems to leave the commissioner’s role open to self-definition. They are appointed by the Prime Minister, and that is it; we are all meant to trust it. I do not want to be cynical, but the question of independence and neutrality is important, because this is a controversial and polarising issue. If we did not think it was, we have only to look at the rather testy atmosphere every Friday in this Chamber, let alone on the airwaves in between. We owe it to the public that they feel that they can trust the process if the Bill is made law.

We have to ask what happens if a partisan figure is chosen—how can that be addressed democratically? What is the process if there is a problem with the conduct of this commissioner? Who is accountable for that? That is one of the reasons I added my name to Amendment 913A in the name of the noble Lord, Lord Wolfson of Tredegar, which seeks ways for anyone with concerns about the conduct of the commissioner to make representations to the Prime Minister. The amendment seeks to probe the process by which the commissioner can be held accountable for their conduct.

That takes me back to neutrality and independence. Let us consider: if we leave this appointment, as the Bill seems to, to the Prime Minister, who is given complete discretion about who to appoint, how will we protect the role from political controversy and being seen as possibly partisan? The noble and learned Lord, Lord Falconer, will not want to compromise the role in that way, I am sure, so some of these amendments might be helpful to insulate it from any accusation of bias.

Is the noble Baroness not concerned, as I am, that we are conflating expertise with bias? People think that because somebody is expert, they are independent. It does not necessarily follow. There could be people who are expert but at the same time very biased in their approach to any subject.

I think that is self-evidently true in the real world, if I can put it that way.

I note that the present Prime Minister is himself personally not neutral. As we now well know, he promised Esther Rantzen that assisted dying would be made legal, although that was not a promise made to the British electorate or in the manifesto, but it was certainly made in public with much singing and dancing. Would the Prime Minister’s personal views influence whom he chose as a commissioner? Noble Lords might think that is far too cynical and I am being grubby—that is fair enough. However, I want to know if there is anything in the Bill that guards against such grubby behaviour, because if anyone thinks there is no grubby behaviour in politics, they need to get out more. If the commissioner is perceived—

If I may intervene again, let me say that this is a post which will happen only if the law has been passed by Parliament. I am not aware—but perhaps the noble Baroness can help me—if there is any other public appointment process which says that someone cannot be in favour of the law that they will be in charge of implementing. Is the noble Baroness aware of any others for which that is the case, or is she saying that this should be the only example in which someone cannot be in favour of the law of the land and the job that they have been appointed to do?

I should clarify that I do not anticipate that those who have reservations about assisted dying will be queuing up to be the commissioner. I am not at all arguing that the commissioner could not be an enthusiast, but what happens if they become an activist and an advocate for it, and mission creep follows? That is very different. It is fine if it is somebody who says they voted for it—somebody in this Committee might well be that person, and they might have disagreed with me. How do you stop someone if they say, “Great, I am the commissioner. I am now in charge of monitoring this”, and so on? We have heard good examples so I will not repeat them.

Sorry, I am not sure if the noble Lord, Lord Moylan, wants to intervene, but I am trying to finish.

In response to the question from the noble Lord, Lord Markham, does the noble Baroness agree that senior and significant public appointments always involve an independent assessment panel making a recommendation, but moreover they also involve Select Committees of this House and/or the House of Commons taking evidence? In a recent example from July last year, my successor was questioned interminably, if I can exaggerate a little, by the Women and Equalities Committee over a small donation made years earlier to a campaign group, and she did not win approval from the committee, presumably on that basis. Parliamentary scrutiny and/or the independent panel are profoundly important. Does the noble Baroness agree that these are significant prerequisites?

That is a very helpful Intervention. We can therefore see that the process of appointing the commissioner should not simply be in the gift of the Prime Minister and that there are processes—we have illustrated that. The difficulties in relation to accusations of neutrality or partiality and so on will come up in that process. However, at the moment, there is nothing in the Bill that would allow any of that to have come up before the appointment.

I suggest that there are a range of amendments in this group that the noble and learned Lord might want to look at carefully and accept, so that the role can be insulated from party politics, accusations of advocacy and speculation about what if this or that goes wrong. Maybe nothing will go wrong, but if something does go wrong with the commissioner’s conduct or they are seen to be acting as an advocate activist, there is nothing in the Bill that would mean that Parliament could do anything about it. We would just be stuck with it. Can the noble and learned Lord say what checks he sees for impartiality and guardrails against activism in the choice of commissioner and their role? What process will there be to ensure a commissioner’s impartiality in their role, even if not in their personal views? How can we make that guaranteed? How can we hold conduct to the highest account? At the moment, it seems to me there is no mechanism in the Bill to do so. Without that formal oversight, the way the Bill has set out appointing a commissioner is unsafe, and it should be looked at again.

My Lords, I have tried in my contributions, which have been few although I have in fact been present for almost every moment of this Bill, to point out to the noble and learned Lord those occasions when his actions can make a great deal of difference. It seems to me that this is one of those.

I have been pressed by the media to speak about the Bill. I have refused every opportunity because I believe that the Bill should be debated in this Committee and there should be no attempt outside to make it difficult for us to say what we need to say in our proper carrying through of our business. If I had appeared on the radio, I would have said that the problem that we face is that there is so much in this Bill that is uncertain, unexplained and left to Ministers and particular appointees that we do not know how the Bill would work in practice.

This is not a question of whether you are on the side of the Bill or against it. It is that we have a duty to make this Bill work. I do not like the Bill and I do not agree with the principle, but I am not speaking from either of those points of view. I am speaking to try to get this Bill to be a suitable Bill to do the job which the promoters want it to do. I much resent the way in which people attack that, as if one is behaving improperly. There has been some disgraceful behaviour attacking one of the most distinguished Members of this Committee, who is knowledgeable and able, with a history of fighting for rights and the kind of behaviour that we should have for the terminally ill and the ill who need palliative care. I hope that the sponsors of the Bill will apologise publicly for what has been said to the noble Baroness, because it is unacceptable.

Let me say why this is perhaps the most important groups that we have had. Outside, there is genuinely held concern about the mechanisms which will make this Bill the safest Bill there is. The person who does this job is clearly not going to be somebody who is against the whole principle. The noble Lord, Lord Markham, is perfectly right that, if this becomes the law, the law will be carried through. The question is whether the person who is going to do this job is someone who will command the respect and support of the nation as a whole. The amendments before us are simply an attempt to find ways of making sure that happens. They are not suggesting that it should be somebody who is opposed to the principle. I cannot imagine anybody applying for it if they do not believe in the principle—I am certainly not going to apply for it myself. The fact of the matter is that it is going to be somebody who supports the Bill and is prepared to carry it through, but that person must have the respect of the public as a whole, and the appointment therefore becomes very important.

I do not want to tread on sad circumstances, but we do not have a terribly good history of appointments in recent years, on both sides of the House, so this is not a party-political comment. It makes it very important to get it right at this point.

There is no question of filibustering in saying to the noble and learned Lord that this is at the heart of the problem. The Bill is supported in principle by many in the organisations that are going to carry it through, but it is opposed in particular by them all because the Bill has not met their concerns.

The noble Baroness may grimace at this, but the fact is that these organisations have a list of things they would like to see put right—and none of them has so far been properly addressed by the proponents of the Bill. That is a fundamental issue; it is not about things that do not matter. These are the people who are going to be asked to carry this through. Therefore, it is not unreasonable for those of us who want a good Bill to say, “Please can you meet each of those demands and concerns, so we feel that the professions concerned are able properly to join in the carrying through of this Bill?”

I give way to the noble Baroness, having referred to her; I am sorry for pointing out her grimace.

My Lords, I know I am out of order because I was not here at the beginning of the debate on this Amendment, but I feel it is important to say to the noble Lord that I was not grimacing at the point he was making.

Noble Lords:

Order!

I am going to continue with this point, because it is a general point that there has been very limited discussion on the amendments since I have come into the House.

My Lords, I am reluctant to stand up as my noble friend was referred to. Having said that, I think it will benefit every Member of the Committee if we continue with the debate.

I think it perfectly right for the noble Baroness to have intervened because I referred to her, and I apologise.

I want the noble and learned Lord proposing the Bill to face three issues that are centred around these amendments—which I am dealing with, I say to the Whip. These amendments are trying to meet the genuine concerns of people who are not necessarily opposed to the Bill. They want to make sure that this key person knows what his or her job is, is appointed in a way the public can have confidence in, and is not the harbinger of what has been called mission creep. Those are three very simple things to ask for.

This is the thing that really worries me. I say this directly to the noble and learned Lord, Lord Falconer. I cannot understand why, at the beginning of the Bill’s passage, he did not say, “First, we know that there is a problem that it used to be thought this Bill had a judicial element to it and it does not now, and I am prepared to look at how to change that. Secondly, we know that the professional bodies have real concerns, and I am going to present my answers to those. Thirdly, I know that there is much in this Bill that is not specific enough, which is why the Select Committees have said it is inappropriate and unacceptable in its present form, and I will put those things right”. Had he said those three things, we would have been a long way forward with the Bill.

Therefore, the Bill is being held up not by filibustering but by the fact that the people who have put it forward are so determined that it will pass that they are not willing, it seems to me, to listen to reasonable comments—even from people who have restrained themselves from entering into the bear garden they have managed to stir up in the media.

My Lords, Amendments 430 and 434 in my name go to the practice in operation. I will introduce them by making this point. I was one of the seven people fortunate enough to be identified in the Observer a couple of weeks ago as having tabled a lot of amendments. Contrary to what the Observer—and the quite numerous hostile messages I have received by letter or email—suggested, these amendments, together with all the others I have tabled, except for two relating to the victims of industrial disease, were put forward by the Law Society of England and Wales and by the CLADD group at King’s College London. The latter, for those who were not here the other week, is a group of a distinguished psychiatrist, psychologist, social scientist and lawyer with a particular interest in this and related issues. They and the Law Society are neutral on the principle of the Bill but want to see a safe and effective Bill. Amendments 430 and 434, together with others I have tabled, are aimed at that.

Amendment 430, some will be pleased to see—others will not—is for a streamlined, non-panel basis. It would insert a new Clause saying:

“This section applies where the Commissioner receives … a first declaration … a report about the first assessment … which contains a statement indicating that the coordinating professional is satisfied as to all of the matters … a report about the second assessment of the person which contains a statement indicating that the independent professional is satisfied as to all of the matters … The Commissioner must, as soon as reasonably practicable, consider the person’s eligibility to be provided with assistance”.

He or she may then

“consider the person’s eligibility personally … refer the person’s case to a person qualified to sit on the Assisted Dying Review Panel”,

or

“refer the person’s case to a multidisciplinary panel”.

In practice, this means that it would be a modified procedure where there is agreement between the co-ordinating and independent professionals. The commissioner could then consider the application alone or refer it to the panel, so it would not necessarily have to go to the panel. A full panel would be mandated only if the independent professional is not in agreement with the co-ordinating professional that the criteria are met, or if it becomes clear during the modified procedure that further evidence is needed.

Some of those who are not in favour of the Bill may be concerned that this amendment could potentially weaken the process. I remind the Committee that Dame Caroline Swift, latterly a High Court judge but formerly lead counsel in the Shipman Inquiry, has said she is afraid that safeguards on assisted dying are likely to be eroded. We have to be very careful, because Dame Caroline Swift was right at the sharp end of looking at this. That is important, as she has seen what happens with a rogue doctor. She said:

“Those safeguards may seem adequate now but they are likely to be eroded over time. As Leading Counsel to the Shipman Inquiry, I saw how this had happened with the safeguards for the issuing of cremation certificates … Over the years, the second doctor’s role became diluted, they were seldom independent of the first, rarely examined the body and the signing of the second form became little more than a ‘tick box exercise’”.

My Amendment 430 might later be at risk of leading to dilution, but I hope it is an indication that there might—in clear cases, where everyone is agreed early on—be a way of moving it on swiftly, to the advantage of someone who is really anxious to go down this course and has capacity and all the other requirements. I hope that will be seen as a positive move and not a wrecker’s move. I am surprised that no one has come to me since this was tabled and said, “That’s a good idea; we’ll stick it in the Bill”.

Amendment 434 would amend Clause 16 and is simply intended to make it clear beyond doubt that referral to the panel is mandatory wherever the independent professional is not satisfied that all the requirements are met. The Law Society believes, and I agree, that as it stands it is not necessarily mandatory, and it should be. So, I ask rhetorically, why not? Are these not both jolly good amendments?

I will speak to Amendment 146, tabled in my name and the name of the noble Baroness, Lady Eaton, but before I do so, in the interests of brevity, I say that I support all that has been said in the context of the appointment of the commissioner. This cannot be a personal prime ministerial appointment; it cannot be a matter of patronage. The role must be insulated from day-to-day politics, especially given the risk of damage to trust in nurses, doctors, the judiciary and in this new process by which the state enables the taking of life. I agree, too, with the amendments which seek to introduce some process to the actual appointment of the commissioner, and I agree with the amendments in relation to conflicts of interest and registers of interests.

Through Amendment 132, the noble Baroness, Lady Cass, seeks to establish conclusively that the commissioner’s principal functions are monitoring and reporting on the assisted dying process. Her Amendment 122 would introduce a new role, that of director, who will put the assisted dying regime into action, selecting and overseeing panels, receiving applications, and deciding on appeals and the other duties in Clause 44. Both the British Association of Social Workers and the Law Society gave evidence that an independent regulator for VAD was essential. In Amendment 128, the noble Baroness, Lady Foster, who is not able to be with us today, identifies necessary duties which would provide additional safeguards, ensuring compliance, identifying risk and identifying the circumstances in which things may go wrong with possible tragic consequences.

I want to speak to Amendment 146—the noble Baroness, Lady Eaton, is unable to be with us today—which is about the very specific risk to people in care and nursing homes, the Majority of whom are vulnerable for one reason or another. The situation of care homes is a matter which the noble Baroness and I have raised repeatedly during the course of the Bill. This amendment develops an obligation which would be imposed by the noble Baroness’s Amendment 128, requiring identification and mitigation of risk. It imposes a duty on the commissioner to monitor and identify emerging risk in the operation of assisted dying in registered care or nursing homes, and to take reasonable and proportionate steps to prevent or mitigate that risk. Where such risk appears systemic, the commissioner must notify the Secretary of State for Health and Social Care, so that appropriate remedial action can be taken.

The issues of vulnerability and capacity, the risk of coercion and the risk of abuse are all particularly relevant to care and nursing homes. Can the noble and learned Lord, Lord Falconer, assure the Committee that these matters really have been properly considered and provided for? I have some difficulty, because the scope of the issue is massive. In 2023, the year for which there are the latest official figures, nearly 400,000 people lived in some 15,000 care and nursing homes in England and Wales. Some 85.7% of the total number of beds in care homes were occupied at the time of the survey. Some 70% of all care home residents have dementia or severe memory problems. The average period of residence in a care home is about two and a half years, and most of them die in the homes. Those figures will have increased in the three years since they became available. Some 120,000 people a year over 75 are diagnosed with cancer. There will therefore be a significant number, possibly the largest cohort in England and Wales, with a terminal illness—however you define it—who will have a prognosis of six months or less to live, and who live in our care homes. On the basis of these figures, it is possible to extrapolate that tens of thousands of people living in care homes will be eligible for assisted dying.

There is an extent to which many of these people are a forgotten, isolated group, who have very little control over their lives. Many of them just cannot leave their nursing and care homes. They are very much susceptible to pressure and coercion, both organisational coercion and personal coercion. We know there have been terrible cases of abuse of the elderly in care homes. Age UK lists the possible forms of abuse. It is very long, but perhaps for this purpose, financial, economic, physical, psychological and organisational abuse are particularly relevant, as are neglect, acts of omission and domestic abuse. Age UK points out that a person can be subject to multiple forms of abuse simultaneously. Financial abuse may include an element of physical abuse, or neglect may be a feature of coercive control. Perpetrators of abuse or neglect are often people who are trusted and relied on by the older person, such as family members or care staff. In these circumstances, there is a risk of vulnerable care home residents being coerced, expressly or implicitly, into assisted dying, or just giving up, because their situation, which might be capable of immediate improvement, has become intolerable.

The Bill does not address concerns about care homes. Care England has said that care providers are

“dangerously unprepared for what lies ahead”.

Some 84% of providers of care homes said they have not been consulted on the Bill or its implications, and 24% of providers said staffing would become very difficult, as many staff would conscientiously object, with a further 16% expressing similar concerns. Only 14% reported staff being willing to participate in the whole procedure, 34% reported their staff not being willing to participate at all, and only 13% said they could manage assisted dying in their homes—only 13%. The potential impact of the Bill on care homes does not seem to have been addressed.

It is very difficult to recruit and keep staff in care homes. Part of the reason, of course, is that the wages are very low in many cases, and it is difficult and demanding work. Many care homes do wonderful work, but there are undoubtedly those which are understaffed and struggle to satisfy CQC requirements. The funding of care is an ongoing risk factor for abuse, and experience overseas has shown that people can be coerced, whether directly or indirectly, into a decision that they should die because of financial issues. It is essential that every possible control be included in the Bill to avoid the problem of what we might call arranging death by proxy: coercing someone into suicide to ensure they are no longer using up resources a family wish to inherit, for example. A change in the law may also erode the trust placed in medical professionals by our residents, which is what care homes have said. The Orders of St John Care Trust said:

“Many of our residents sadly already see themselves as a burden. This can be financial, or just because they are now reliant on those who once relied on them. This makes them vulnerable to” deciding

“for the wrong reason” or as a result

“of exploitation … Older people in social care as a whole are already viewed as a problem without a solution”.

The DNR scandal is a

“clear demonstration that an existing broken system places a lower value upon the lives of older people than of others”.

I urge the noble and learned Lord, Lord Falconer, to accept these amendments to provide some security and safeguards for those who will live and die in our care and nursing homes. If he is reluctant to do so, what controls will he introduce to protect the old, the isolated, the lonely and the vulnerable? I am afraid it will not be enough to answer me by saying that that is the job of the CQC. What will the Minister do to address the problems and risk that will exist in our care and nursing homes?

My Lords, Amendment 146A in my name requires the voluntary assisted dying commissioner to have particular regard to the right to life under Article 2 of the European Convention on Human Rights when carrying out their functions under the Bill.

In tabling the amendment, I recognise that, under Section 6 of the Human Rights Act 1998, public bodies are required to act in a way that is compatible with each of the convention rights. I can appreciate somebody attempting to argue that this amendment is unnecessary, but, as noble Lords will understand, Section 6 of the Human Rights Act sets a minimum floor for public bodies—they must act compatibly with the convention—but it does not provide a method for decision-making. It does not tell them how much weight to give a specific right in a particular statutory context. Without any further guidance, the balancing exercise between rights is left in the hands of the public body, with the court subsequently determining the legitimacy of the decision by a judicial review after the Bill becomes an Act.

However, in this life and death matter, we cannot wait until after the Bill is passed and until people have lost their lives; nor should we leave the question of balance solely to the courts. Parliament must take ownership and give a steer and signal to which issues matter most. Historically we have done this through “particular regard” clauses. To provide just one example, under Section 22 of the Online Safety Act, we require ofcom

“to have particular regard to the importance of protecting users’ right to freedom of expression within the law”.

Given the concerns that freedom of expression often loses out to risk aversion or administrative convenience, we made it clear that any justification to restrict content must consciously and explicitly address Article 10 rights. In effect, the Clause has Parliament take the policy choice demanded under the ECHR, rather than leaving it to unforeseeable Ofcom decisions.

Turning to the context of the Bill before us, and the reason I have tabled this amendment, I am troubled that concerns around the Article 2 right to life have too often been squeezed out of this debate. Instead, attention has been fixed on the question of whether the safeguards, which many of us consider essential to protect the lives of those vulnerable to comorbidities or potential coercion, would restrict access to assisted suicide and so impinge on the Article 8 right to family life and privacy.

I am far from alone in having this concern. Last November, after providing evidence to the Select Committee that considered this Bill, the Equality and Human Rights Commission’s Alasdair Henderson wrote to the chair of the Select Committee to reiterate the exact issue I have just raised. He said that the Government’s equality impact assessment

“does not strike the right balance as it mainly focuses on access issues. It provides more limited information on the potential risks, such as those around safeguarding and coercion, which might affect people with different protected characteristics”.

The same marginalisation of Article 2 is present in the Government’s human rights memorandum on the Bill. Several key concerns around Article 2 raised by experts in the field are simply ignored. Let me provide two brief examples to illustrate my point. First, the memorandum defends the lack of a statutory appeal for family members who might raise new evidence of coercion or other factors influencing the decision, on the grounds that it is necessary and

“proportionate to ensure the process is not frustrated through lengthy legal challenges” and to protect

“the article 8 right of a person to choose the time and manner of their death”.

But, shockingly, the memorandum makes no reference to the Article 2 right to life that may be impinged should the panel overlook an important influencing factor.

Secondly—I raised this point at Second Reading—the memorandum fails to engage with the concern raised by Tom Cross KC and the EHRC that the Bill

“unjustifiably discriminates against those persons whose disabilities manifest in the expression of suicidal ideation”,

in so far as it lacks a mechanism to clearly distinguish whether their wish to die is a manifestation of their disability or a genuine decision unrelated to their disability. Consequently, in their opinion, as it stands, the Bill could well breach Article 14 as well as Article 2.

Again, the Government seem to have ignored this concern. The Minister, the noble Baroness, Lady Merron, said in a Written Answer on 14 July that the Government were “aware” of Tom Cross KC’s advice when updating their memorandum but chose to not to “reference it”—I find that significant. She assured the House that

“the Government has set out the articles of the ECHR which it considers are likely engaged by the bill, including Article 14 together with Article 2”.

For the sake of time, I will ask the Minister something directly today. She will remember that a few weeks ago the noble Baroness, Lady Falkner, a former chair of the Equality and Human Rights Commission, called on the Government to update their equality impact assessment in line with the request of nearly 60 Members of this House. As the noble Baroness’s question was raised during the Clause 1 stand part debate, the Minister did not have the opportunity to respond. Will she do so now and explain why the Government do not seem to be following the usual guidance set out in the Cabinet Office’s Guide to Making Legislation in failing to update their impact assessment?

Returning to my argument, I think that the Government addressing these concerns around Article 2 would help correct the unhelpful impression that these are not things to be concerned about. I am worried, as I suspect others are, by the impression given at the Dispatch Box each week that safeguards are perceived basically as a barrier to equal access rather than as a justifiable and proportionate measure to protect life, which the state is obliged to do. I believe we are in danger of forgetting that it is the Article 2 right against being intentionally deprived of life by the state that is absolute, and not Article 8.

This is a dangerous place to be. The Government may indeed be neutral on the matter and claim they are just setting out what is possible with the margin of appreciation afforded by the Strasbourg court. However, as Amendments 126 and 913 remind us, the voluntary assisted dying commissioner may well not be neutral, as has already been mentioned. Indeed, they could be an advocate of assisted dying who wants to see the expansion of the regime and the erosion of safeguards.

My fear is that if the Government send the message that Article 2 does not matter, because Strasbourg has ruled that legalising assisted suicide is within the margin of appreciation of any state, rather than emphasising that the position only stands on the quality and implementation of each law’s safeguards, then we risk giving the commissioner a green light to push boundaries, potentially beyond the limits of Article 2, and only finding out after they have been breached—much too late, as I am sure everyone will agree. It must be the latter, and I urge the sponsor of the Bill to send that important message. I trust that the Minister will take time today to address that issue.

My Lords, I will speak to Amendments 145 and 439 standing in my name. It is good that I previously gave way to the noble Baroness, Lady O’Loan, who is no longer in her place, because she covered a lot of the points that I was going to make about care homes.

This is the first time I have spoken in Committee, even though I have attended virtually every day of the proceedings. Lots of people spoke earlier about their personal experiences. I do not intend to go into extensive detail, but I want the Committee to know that I have, for the past eight years, had power of attorney for my 88 year-old mother, who has been in a care home for that time. She has advanced dementia. She cannot speak, read or write. She does not know who I am. So, I have first-hand, practical experience of fluctuations in capacity and how that can be dramatic, from one day to the next. I come at this from a very practical, family-based perspective as well. Those of us who are former MPs have seen those family situations in our surgeries. That is where I am coming from. We need to make sure that family and care home staff always have the best interests of patients, such as my mother, at heart, as I know that they would wish to—but we just do not know what those interests are in my mother’s case, given that she simply cannot communicate.

My Amendment 145 is very much in line with what has already been said about the appointment of the very important role of the voluntary assisted dying commissioner. The noble and learned Lord, Lord Garnier, the noble Baroness, Lady Finlay, and others have already mentioned ways in which we can ensure that public trust is commanded by the appointment of this person. It may well be that there are better ways of achieving this than my amendment. I urge the sponsor of the Bill, the noble and learned Lord, Lord Falconer, to come back to the points raised by a good number of us.

I suggest that the Cabinet Office should create and maintain a register of interest for the commissioner’s office and the panel members. This appointment is solely in the authority of the Prime Minister, as the noble Baroness, Lady Fox, remarked. This is very important for public trust. It does not matter which Government are in office; we must have transparency and confidence when this person is appointed. The noble and learned Lord, Lord Garnier, suggested that this should be an appointment by His Majesty. It may be that that is a more effective way of achieving the end result.

My Amendment 439 has not been discussed in detail so far in this group. It would require the commissioner to notify specified and interested parties of a person’s referral to an assisted dying panel. Here, the noble and learned Lord, Lord Falconer, will be aware of practice direction 9B in the Court of Protection Rules. That is where we are coming from with the amendment. It states:

“The applicant must seek to identify at least three persons who are likely to have an interest in being notified that an application form has been issued”.

The direction goes on to make clear it that ordinarily, although there are some exceptions, close family are

“likely to have an interest in being notified”.

This can then enable them, if appropriate, to submit a formal witness statement to the court.

I cannot understand why it should be any different here. Assisted dying panels are given extensive powers to make judgments under the Mental Capacity Act 2005, just like the Court of Protection. Surely the same powers of notification and, for that matter, summoning witnesses should apply. If the sponsor does not agree with this or cannot accept it, perhaps he can explain why he thinks that the panel process should be more secretive than the Court of Protection proceedings.

This brings me to the importance of emphasising how important it is to involve families in these significant decisions. One of the problems with the Bill is that it seems to treat assisted suicide as an entirely autonomous decision that can be considered in isolation from the context of other complex care needs. Those of us who have first-hand experience with loved ones will know that this could well be a patient crying out for further support in some way—with their care needs, how they feel or their emotions in that moment. I raise this because the NHS guidance on complex care planning repeatedly emphasises the involvement of family and how important that is. I quote NHS England’s guidance:

“It is important to involve families and carers in decisions about … someone’s care and support (with permission of the person being cared for) … It is important to be led by the person, with their family, carers or supporters, to make sure they can be involved in decision making”.

Similarly, the statutory guidance under the Care Act promotes a whole-family approach to assessment. That is a principle that I am sure we all recognise—that the provision of care involves several parties, including the family, who also need to be supported. This is significant, because many people who request assisted suicide express the concern that they feel a burden. We have heard that expressed time and again in these proceedings. It may well be that if discussions involved family or carers, which then allowed further support to be offered, that motivation would disappear.

Before I sit down, I will address the objection that there might be circumstances when, it is argued, the family should not be notified, perhaps most obviously in an instance when they express the view that they do not want that. I accept that the Court of Protection Rules I referred to provide a certain degree of discretion as to which relatives are notified, considering who is practically closest to the person. The rules also include a provision that is entirely absent in the Bill:

“Where the applicant chooses not to notify a person listed in paragraph 7 … the evidence in support of the application form must also set out why that person was not notified”.

That same exploration and recording requirement on this point is set out for social workers in the NICE guideline on social work with adults experiencing complex needs, and there are good reasons for this. When a person does not want their next of kin to be involved, it might be a red flag that could indicate coercion, an inheritance dispute or some other significant issue. That should be a material fact that is taken into account by the panel.

This somewhat anticipates Amendment 389 in the name of the noble Baroness, Lady Gray of Tottenham, in another group, which would require the assessing doctor to discuss—although not record—the reasons why a person does not want to notify their family. As it connects to my amendment in this group, I ask the sponsor, if he is not minded to accept my amendment because it does not allow the person to decide whether they want their family involved, why the Bill does not include an explicit recording requirement on their exclusion in line with the usual practice.

My Lords, contrary to Amendment 129, I think that the Bill gets it right in requiring, at Clause 4(3), that the voluntary assisted dying commissioner must hold or have held office as a judge of the High Court, the Court of Appeal or the Supreme Court. This is quite clearly not a medical role. Its principal functions are to ensure that the statutory processes and safeguards that Parliament would have established are being adhered to.

However, we have to accept that a postholder having been a judge does not automatically mean that they will not come with personal views about the scope of the law that Parliament has passed. Therefore, the debate that the Committee has just had on how to make sure that there is transparency about the views that such an individual might hold before their appointment is ratified has merit.

For example, I was very struck by an important interview that the noble and learned Baroness, Lady Hale of Richmond, the former President of the Supreme Court, gave in Prospect magazine in December 2024. She recorded that, in the case, for example, of Tony Nicklinson back in 2014, who wanted it to be declared that it was lawful for people to assist him to take his own life because he had a disabling illness but was not terminally ill, two Justices of the Supreme Court

“would have been prepared to make a declaration that the current law on assisting suicide was incompatible with the Human Rights Convention”.

She went on to say:

“There were nine of us on the court. Of that, five of us took the view that when the time was right, the court might make such a declaration of incompatibility. But three of those five thought the time was not yet right”.

I infer from that that—at that particular point in time, anyway—five Justices of the Supreme Court would have taken the view that the Bill before us, if passed by Parliament, would fall foul of their reading of the European convention.

It is helpful to think about the mechanisms by which Parliament could know the views of such judges, were they to be put forward for appointment as the voluntary assisted dying commissioner. The thrust of Amendment 127 in the name of the noble Lord, Lord Beith, therefore has merit. It would require, for example, pre-appointment hearings by one or more Select Committees in the House of Commons, which would give us an opportunity to probe these questions and make sure that a nominee was going to stick to the faithful implementation of the legislation that Parliament, after such careful deliberation, would have produced, rather than, for example, interpreting the role of the voluntary assisted dying commissioner as in some way akin to that of the Children’s Commissioner, which is clearly an advocacy role for the rights of children.

My Lords, this is a really important Clause and a really important schedule. This is the one time when a judge, whether they are current or retired, will be involved in any of this process after the Commons chose to strip judges away from the original proposal. I have tabled stand part notices opposing Clause 1 and Schedule 4 because I would prefer a judge-led process; I have a lot of sympathy with what the noble Lord, Lord Carlile, articulated several weeks ago.

Let me say at the start that I disagree completely with the idea from the noble Baroness, Lady Cass, that this role should start to become like that of the Children’s Commissioner, the Victims’ Commissioner or similar. That is simply not the case, and not only because the legal powers in the Bill—in Clause 18, in particular— are where they must make judgments on whether there have been errors of law in the panellists’ determination. I am very keen, which is why I have tabled Amendment 913ZD, for us to get this back in focus, particularly in terms of the commissioner’s role, and to think about this person being a judge, not the Secretary of State.

I agree that it should be the Lord Chancellor so, to some extent, I agree with the noble Lord, Lord Beith, that Select Committees of Parliament should be able to go through this process as well; it should be the Ministry of Justice and the relevant committee in the Commons. There is precedent here. I think it was the noble Lord, Lord Tyrie, who managed to get a determination role for the Treasury Committee so that it had, in law, a power of veto on the appointment of the chair of a body; I think it was the CMA, but I cannot quite recall it right now. So there is a precedent in this regard.

I agree with what the noble Lord, Lord Stevens, just said. The Bill is right, in that it should be a retired judge. There are a lot of views and a variety of opinions on this. So far, only one retired judge, as far as I have been able to ascertain, has come out publicly against the Bill. Those who have expressed views are, as has just been articulated, very much in favour of the Bill; in fact, they think it should go a lot further. So some sensitivity will be required by whoever gets to make the decision on who the commissioner should be.

My noble and learned friend Lord Garnier would like this role to be done by His Majesty. There is a certain irony there. It is good to see so many Lords Spiritual here. I did try to see whether I could table an amendment to strip out, at the very beginning of the Bill,

“with the advice and consent of the Lords Spiritual and Temporal”,

but the Lords Spiritual have already been very clear that they do not, and will not, consent to the Bill. Why, then, should we put the onus to make this appointment on the Supreme Governor of the Church of England? I appreciate that there have been some difficulties with the current Prime Minister and his appointments recently, but I would be surprised if anything quite so careless happened again with future appointments concerning this or other approaches. More broadly, I support their proposals to get this into the public appointments process.

On Amendment 134, I support my noble friend Lord Moylan completely in trying to prevent mission creep. That is a risk, which is why I have tabled Amendments 913ZA to 913ZD and 914A to 914C as probing amendments. Schedule 1 to the Bill says that, basically, the Secretary of State will hand over as much money as they see fit. They will decide on pay and pension arrangements and will give people offices—all the things one might expect of a sole corporation. As far as I can tell, none of the employees will be civil servants, unless they are seconded civil servants.

However, in this regard, the Carltona principle is still in place in the schedule; I am thinking in particular of general staff, as in paragraph 8(2) of Schedule 1. It will not apply in respect of only two specific functions: appointments to the list of people who are eligible to be panel members; and the determination of the right to appeal through Clause 18, which is where the person applying will say, “I think it’s been unfair and irrational”, and the commissioner will then make a decision, without a hearing, on whether to refer them to another panel in future. There are key elements here that would require this role to be done by a lawyer, which is why I am keen to make sure that the Lord Chancellor is in charge.

However, I want to try to get a sense of something. My concern is that, if we do not put some kind of guardrails on what this commissioner will do or the size of the role, it will start to spread. Your Lordships can see that that has happened in many other bodies and sole corporations, where there is perhaps not as much work as they thought, so they start looking for things to do. This role should be pretty functional, which is why I do not understand the need for a deputy at all. Paragraph 3(1) of Schedule 1 says:

“The Prime Minister must appoint a … ‘Deputy Commissioner’”,

who will, by the way, have every single power that the commissioner has. There will already be staff in this organisation who can do everything except these two things, so the deputy will be a completely unnecessary role. Frankly, it will probably be a costly role as well, because the same role will still have to be done by a person of the legal standing set out in the Bill; I have assumed that these will be judges of the United Kingdom, or of England and Wales, who have served here, but that is not specified on the Bill either.

I want to get into this because, in the impact assessment, the Department of Health suggests— I assume that the Bill’s sponsor agrees with this—that these things are likely to start happening in October 2029 and that, in the first year, the estimate is between 164 and 767 people. I have put in a proposal to cap it at 10, reflecting the fact that this just a figure at the moment; it is not particularly overdesigned but it does reflect an efficient organisation with, I hope, not tons of work. By the way, I would include anybody who is seconded, which will be highly likely if civil servants and similar do that; indeed, if the Ministry of Justice wants to second people to support the commissioner, it should pay for that.

Length of tenure here matters to me. People should not be reappointed. The Bill’s sponsors have put forward five years; it may be that that should be six or seven years. I have not gone into that level of detail, but I do believe that it should be a one-term appointment and that people should not be reappointed. Although I understand that there may be an element of people saying, “Well, they’re only just getting used to the role”, and so on, recognising the fairly narrow number of people who are likely to be eligible for this role, the retired judge’s view of this legislation should not matter. We should be able to find people who would act on this. We certainly seem to be able to find judges to run public inquiries that go on for multiple years; I do not see why this would be any different.

For what it is worth, I would potentially go further, and put a block on Members of this House or the House of Commons being allowed to take up the role. That certainly applies to certain roles created in previous legislation.

The other interesting amendment is Amendment 146. We will come back to this in a different way later in the debate, but I am worried about the “Harold Shipman effect”. I understand that there are supposed to be two doctors looking at this and then others, but, as we have debated, the panel does not have to be together to make its considerations, and does not necessarily have to meet the person who is putting forward the proposal. This amendment proposes a way of starting to think about the fact that to have confidence in this working, we cannot just wait for the annual statistics—and other noble Lords have tabled amendments about duties, statistics and reporting—which might come three years later. We are still waiting for a variety of things. I would ensure sure that we look at what information can be made available a lot more quickly.

I appreciate that I have gone past the 10 minutes, so I will bring my remarks to a conclusion. I have raised a series of questions about what this is going to look like. I note that the noble and learned Lord, Lord Falconer of Thoroton, has tabled Amendment 480, which gets into the issue of the panel, and so we will talk about that later and he will respond. I will not ask him to clarify that again once he has spoken, but I may return to the issue in group 3.

My Lords, I was going to speak to Amendment 146, in the name of my noble friend Lady Eaton, to which I have added my name. It concerns care homes and a duty on the commissioner to identify and monitor emerging risk and report systemic risk to the Secretary of State so that preventive steps can be taken. However, as the noble Baroness, Lady O’Loan, has so ably introduced it, I simply convey the apologies from my noble friend Lady Eaton, who sent them last night.

The other amendments that I support in this group—Amendments 436, 439 and 913—I will not go into, in the interests of brevity. The last one is about conflict of interest. The others seek to put a duty on the commissioners to serve as an extra safeguard, so that the exercise of the commissioner will not simply be to tick boxes but to request further paperwork if necessary, or that the families will be notified, as in the amendment tabled by my noble friend Lady Maclean. That can act as a trigger for a discussion with the families and perhaps prevent the coercion which can happen.

Amendment 913 seeks to prevent those involved with organisations promoting assisted dying, whether as volunteers or employees, being a commissioner, a deputy commissioner or on the staff. There is a conflict of interest if those who have a responsibility for seeing that procedures for assisted suicide are not abused should themselves be actively committed to the cause of promoting assisted suicide. The conflict of interest is so self-evident. I imagine that it is an oversight that a Clause to this effect was not included in the original Bill. Perhaps the noble and learned Lord, the sponsor, could comment on that and tell us whether he envisages a conflict of interest and how best we can prevent it.

I associate myself with the very strong expression of support for the noble Baroness, Lady Finlay, who tabled Amendment 913. The support was to give sympathy against the attack on one of the leading medical authorities in this country—a specialist in palliative care who has put her knowledge, expertise and time at the service of those most in need of palliative care. She has done so with her time and her knowledge. Not only that but she has served this country in all kinds of ways: teaching students, seeing patients and building up her profession, which is one of the most important specialisms in medicine. She also gives such service to this House, giving her time selflessly, with her knowledgeable contributions and in sitting on the Woolsack, night after night. We owe her an enormous debt of gratitude, not only in this Chamber but in the whole country.

My Lords, I have two amendments in this group, the first of which is Amendment 125. I am concerned because the Bill as it stands leaves the responsibility of appointing the commissioner to the Prime Minister alone, with no guarantee of the usual safeguards that are applied to public appointments. As a Cross-Bencher and someone who has been through the independent process— I owe my seat in the Chamber to that process— I believe it is vital.

In October 2025, the Cabinet Office released an updated Governance Code on Public Appointments. The first two requirements are for integrity and openness: Ministers must declare and resolve any interests and relationships, and the processes for making public appointments should be open and transparent. My amendment seeks to bring more transparency and openness, but would leave the final decision with the Prime Minister—once, of course, they have consulted with Welsh Ministers.

There are no such requirements in the Bill for this, just that the commissioner must hold, or have held, office as a judge of the Supreme Court, the Court of Appeal or the High Court. That is a reasonable assumption. However, there is no requirement for the commissioner to declare and resolve any interests and relationships or for the appointment process to be open and transparent. We have to declare virtually everything that we do, so it is not inappropriate that the commissioner should have to do so as well.

I strongly agree with the noble Lord, Lord Deben. That person has to command respect. However, the reason I am asking for this is also to safeguard the individual. We see in the amendments today that the Bill is weak on data and reporting provisions.

My noble friend Lady Finlay raised what has happened in New Zealand. Simon O’Connor, a former New Zealand MP, described some troubling incidents there around the two doctors. Dr Dana Wensley resigned due to her concerns regarding serious problems with the committee’s ability to oversee the implementation of assisted suicide and euthanasia. Dr Wensley is an ethicist. Dr Jane Greville, a palliative care specialist, was pushed out, it is thought, because she was raising too many concerns about the operation of the new law. Both Dr Greville and Dr Wensley went public and stated that the committee’s oversight of the law was so limited that wrongful deaths could go undetected. They cited being extremely concerned about how little information they received relating to patient death, leaving them feeling constrained to the point of irrelevance. They both said that the system was so broken that they would not have been able to identify if somebody had wrongly died.

What happens if normal standards are not followed? We can compare it to someone with significant shares in a drug company being able to decide what drugs the National Health Service could use. As others have said, the assisted dying commissioner will have tremendous oversight. They can make appointments to the list of persons eligible to sit on the assisted dying review panels. They can make arrangements in relation to panels, determine applications for reconsideration and monitor the operation of the Act. This role should be defined by Parliament, not by their own ideas. I would like the noble and learned Lord to give assurance that this appointment process will be looked at to see how we can ensure that the Nolan principles for public appointments will be adhered to.

Looking at the possible scenarios, this individual could be called into a meeting with the Chief Medical Officer to discuss the future of palliative care. They will hold a great deal of power in their hands.

At the Lords Select Committee, Justice Minister Sarah Sackman confirmed that there would be no support to engage or challenge the commissioner. I am very interested in the noble and learned Lord’s view on whether legal aid would be possible to do this. In the case of exceptional funding in coroners’ cases, we might have to be in the position where a person is dead before they get any support to challenge the decision that was taken.

The noble Baroness, Lady Coffey, talked about the size of the commission. That leads me to my Amendment 916, which would require that

“The Commissioner … keep records of the numbers of … full time … part time, and … seconded … staff working for them and must include this information in their annual report under section 49”.

This amendment is, again, intended to provide transparency. For a public appointment as sensitive as this, the British public have a right to know what it will cost. As we know from previous experience, it is very easy for these organisations to grow.

My background is in sport. I work in sport. I declare my interest as a chair of Sport Wales; that was done through a public appointments procedure. I am sorry that the noble Lord, Lord Moynihan, is not in his place; he was here earlier. In 2017, I recommended that sport needed an ombudsman—an idea from several years before, which I stole from him. I recommended a very simple ombudsman to deal with matters of integrity and safeguarding. But one of the consistent messages I have had from several Governments is not that we do not need it—it is recognised that there are issues with safeguarding and integrity in sport—but that I could not predict the size and scale of that body and that it might grow.

Last year, the Times reported that, in 2022-23, spending by arm’s-length bodies represented 29.6% of all public sector spending, which is more than double what it was in 2012-13, when it was just 13.2%. The assisted dying commissioner’s office would fall under the arm’s-length body category and would join this public sector spending, which seems to grow even though there have been attempts made in the other place to impose restrictions. Our public sector should be accountable to the public. This office will have powers over matters of life and death and needs to be fully transparent to the public. We need to make sure that real accountability is embedded in the Bill and is not something that can be dismissed later on.

I draw attention to the part of my amendment that would require that the number of staff seconded into the organisation is recorded. I have seen this in other places; it is quite a smart way of making organisations look much smaller than they are. Again, this is about providing true transparency. Can the noble and learned Lord give an assurance that the size of the body will be recorded and that that will be transparent?

My Lords, I follow the noble Baroness in speaking to the issue of the commissioner. The shift from the High Court to a commissioner has been compounded. The Bill originally proposed that a High Court judge would authorise every assisted death—a feature initially championed by the Bill’s sponsor in the other place to make the United Kingdom’s law the safest in the world, with robust safeguards. That has changed dramatically and we now have a new structure, with a commissioner appointed by a Prime Minister.

The voluntary assisted dying commissioner is an important role. They will be given powers both to run and monitor the service. This creates the obvious risks of inadequate public scrutiny and independent review. It is judicial in the broad sense of involving a judge, but it does not appear to have a judicial function. The commissioner will both run the service and monitor it, which means that a highly controversial and important service will be run with little proper oversight. The commissioner will be responsible for establishing the regime and overseeing appeals as well as monitoring and reviewing its operation. In effect, as others have said, this allows the commissioner to mark their own homework.

Dr Luke Geoghegan, policy lead of the British Association of Social Workers, told the Select Committee that an independent regulator for VAD was essential. He said:

“The other thing that I think would give assurance is that no public sector organisation should mark its own homework. The voluntary assisted dying service needs robust external inspection”.

In its written evidence, the Law Society said:

“We recommend the establishment of an Independent Monitor to review and report on the operation of the Act annually”.

The commissioner could be an assisted dying campaigner or someone linked to an advocacy group. Other countries have experienced problems when the assisted dying service is run by an advocate, yet nothing in the Bill prevents this risk of conflict of interest.

In the Constitutional Reform Act 2005, the noble and learned Lord, Lord Falconer, developed a new judicial appointments process designed to guarantee an independent, impartial judicial appointments process and an enshrined statutory duty requiring respect for the independence of the judiciary by Ministers. Yet in the office of the commissioner, we see a potential patronage office in the political gift of the Prime Minister without any internal or external safeguards. Can the noble and learned Lord tell the Committee how the commissioner’s impartiality will be guaranteed? Why has he changed his mind on the importance of statutory guarantees of independence? Will the public have any right to know the commissioner’s views?

Amendment 127, in the name of the noble Lord, Lord Beith, would

“make the Prime Minister’s choice for Commissioner subject to scrutiny and approval by the House of Commons’ Health and Social Care Select Committee”.

There is a lack of accountability and transparency around the commissioner’s appointment process, which is entirely in the gift of the Prime Minister. Therefore, I ask the Minister who will respond to this group: have the Government followed Cabinet Office guidelines regarding appointments? The Cabinet Office Guidance: Pre-appointment Scrutiny by House of Commons Select Committees, published in 2019, requires:

“When establishing a new public body, departments should ensure that they consider whether any public appointments to that body would meet the criteria” for a pre-appointment hearing. It continues:

“They should seek guidance from the Cabinet Office and also discuss this with the relevant select committee Chair in a timely manner before establishment of the new body”.

Can the Minister confirm whether the Government have discussed the matter of a pre-appointment hearing with the Commons Health and Social Care Select Committee?

My Lords, I have a couple of points to make on this group of amendments. Let me start on a note of agreement with the Bill’s sponsor, the noble and learned Lord, Lord Falconer, who has in this group Amendment 131A, which would require:

“Before making an appointment under this section, the Prime Minister must consult the Welsh Ministers”.

I think that is a sensible approach. We have had disagreements about whether the Bill should or should not apply to Wales but, given that it does, it is sensible that Welsh Ministers are consulted.

It is worth noting that Welsh Ministers have some views on this matter. Given that we are talking about consulting Welsh Ministers, this is probably the time to note them briefly. In the vote in the Senedd this week, Wales’s Health Minister, one of those who would be consulted, made two points clear. First, he said that the Motion in the Senedd was not a referendum on legalising assisted dying with only this Parliament able to make that decision. He also said—this is important, given that there are those outside this House who pretend that the only people who think this Bill has any flaws are a small number of Peers, when that is not the case—that he voted against the legislative consent Motion because:

“I’m also clear in my own mind that the fundamentals of the bill, as it’s going through Westminster, don’t provide sufficient safeguards for patients”.

The Welsh Health Minister, who would be one of those responsible for helping to implement it, thinks that the Bill currently does not have appropriate safeguards. He went on to say:

“Although the vote yesterday was on the devolved areas ... the net effect is to give powers in Wales to deliver a service that I don’t think I would support if I was operating over the border”.

For all sorts of reasons, it is helpful to consult Welsh Ministers. We have heard from them this week, and they are very clear that this Bill is currently flawed. Therefore, I think we are doing the right thing by scrutinising it, asking questions and putting forward amendments to improve it. We can see that it is not just Members of this House who have concerns; elected Members serving in the Welsh Government also have concerns, and it is worth getting that on the record.

The fundamental thing that I want to talk about is the prime ministerial appointment process in the Bill. I was quite surprised, not particularly that the Prime Minister was making the appointment, but that there was no other process around it. The Bill currently says that the commissioner is to be appointed by the Prime Minister. The one constraint is that:

“The person appointed must hold or have held office as a judge of … the Supreme Court … the Court of Appeal … the High Court”.

Other than that, there is no process set out that the Prime Minister has to follow.

There are two flaws with that. There is the one that the noble Baroness, Lady Fox, set out, which is that, given that this is an area of policy, the Prime Minister may have their own views about the issue and that may influence the person they choose. My noble friend Lord Markham was quite right that the person would simply be implementing the law. The worry is that if you appoint somebody who has a very strong view about the issue and is prepared to use holding this office to prosecute advancing it, which is the concern my noble friend Lord Moylan set out, that is a problem. The concern I have with the Bill as drafted is that the Prime Minister could appoint such a person, and we would have no way of knowing in advance or of testing that person’s views before the appointment was made. We would find out about it only afterwards, and that is a real problem.

Secondly, I am afraid that we have seen examples of the current Prime Minister making staggeringly bad appointments, and the rather obvious one is Lord Mandelson. I see the Minister shaking her head, but it was a shockingly bad appointment. It is an example of a decision being made to appoint somebody and the process being circumvented in order to get the right result. The person appointed to this role is responsible for life and death issues, and as my noble friend Lord Deben said, it is extremely important that they command the confidence of the public—not just people who are in favour of assisted suicide, but those who are against it and who want to see a proper process with proper safeguards, so that that person holds public confidence.

Does my noble friend agree that, given the surreptitious but none the less firm support that the current Prime Minister has shown for this Bill, it is almost impossible to believe that he would not be personally involved in this appointment?

I think that is right and that that is a concern. The noble Baroness, Lady Fox, set it out very well. There are two approaches in this group of amendments to deal with that issue, and I want to explain why I have come down on one side rather than the other. There is the approach that my noble and learned friend Lord Garnier set out, which is to take it away from the Prime Minister and make it an appointment by His Majesty the King on advice from the Lord Chancellor. The alternative approach, set out in the Amendment proposed by the noble Lord, Lord Beith, is a better one, which is to subject the person concerned to a pre-appointment hearing of a Select Committee.

That is a better approach because it is more transparent. As the noble Baroness, Lady Falkner, set out, it is actually quite a tough process whereby the candidates can be grilled about their views and their qualifications, how they intend to use the role and whether they intend to use it to advance the law in any way. They can be questioned on that. There is also a precedent, as has been mentioned in the debate, I think by my noble friend Lady Coffey: appointments to the Office for Budget Responsibility not only have a pre-appointment hearing by the Treasury Committee, but the Treasury Committee has a veto and has to consent to those appointments before they can be made by the Government. That is a good model.

So rather than changing who makes the appointment, I am content for it to remain a prime ministerial appointment, with the amendment to consult Welsh Ministers, but before the Prime Minister can make such an appointment, we should ensure that there is a pre-appointment hearing by a Select Committee of the House of Commons. I am not convinced that it should necessarily be the Health and Social Care Select Committee, as there is an argument it should be the Justice Committee, given the nature of this role. That is a secondary question, but there should be a pre-appointment hearing where the person’s qualifications and motivations can be interrogated in public, and then that committee can make a decision. It would mean that the Prime Minister could proceed only with the consent of a cross-party committee—whether it should be a committee of just the House of Commons or a joint committee of both Houses may be an issue worth considering. That would achieve what my noble friend Lord Deben was arguing for: a transparent process held in public so that the public can have confidence in the person appointed, and the Prime Minister can then move forward with that appointment, knowing that it is not going to generate an enormous amount of partisan controversy, which is the last thing we want for this important appointment.

So, on balance, I am happy if the noble and learned Lord, Lord Falconer, moves his Amendment 131. I would certainly have no problem with adding that to the Bill. I am attracted to the solution proposed by the noble Lord, Lord Beith: pre-appointment hearings, with the Select Committee having a veto on the appointment, and only when that has taken place can the Prime Minister move forward. If we do that, we will have a robust process in which we can have tremendous confidence.

I have listened to two and a quarter hours of debate on this group. I was not really intending to speak, but I am afraid I cannot resist an “I told you so” moment. I am speaking not because I was name-checked by a number of noble Lords in various parts of the House, but because I think it important to emphasise the background for that name-checking.

First, we have been focusing on the appointment of the commissioner, looking only at Clause 4. I say in credit to the noble and learned Lord that it looks as though a large number of your Lordships have not read Schedule 1 to the Bill, because it is an absolute clear fact and matter of law that if the appointment of the voluntary assisted dying commissioner under Clause 4 was done improperly and not objectively, it would immediately be opened to a host of judicial review cases, which would be brought by every interested party or group looking at this issue.

I want to say something quite different, and here comes my “I told you so” moment. Some noble Lords may just about recall that, early in Committee, I proposed Amendment 120, which proposed returning to a court-based model architecture for the Bill: among others, the noble Baroness, Lady Coffey, referred to that earlier. If we were to follow the provisions of Amendments 120 and 137, which would remove Clause 4(4)(b), (c) and (d), we would have a clear, court-based procedure. Amendment 120 could of course be improved, and I think I am going to be given some facilities by the noble and learned Lord to talk to officials in the near future about that and how it might be designed, but it would mean that the voluntary assisted dying commissioner would then have a much more limited role, which would be to monitor the operation of the Act, receive documents under the Act and report, just as other independent reviewers report, on functions that they are placed in some position of authority over.

I suggest to the Committee that we would not need to have spent the last two and a quarter hours having the debate we have had if we had that simple architecture, which would inspire the confidence of being supported by the courts, knowing that this would be subject to normal court, appeal and evidential procedures. Maybe we should come back to that at a later stage. I hope that the noble and learned Lord may change his mind about that once he considers carefully and in detail what has happened this morning.

My Lords, I would like to address the issue of mission creep. I have tabled amendments that come so late in the procedure that I do not think we will ever reach them, but I am concerned that the Bill, if it becomes an Act of Parliament, will morph into something entirely different from what we have all voted on.

I have a confession to make. I voted in the early 1980s for amendments to Lord Steel’s Abortion Bill, which went through at that stage. One of the concerns we had with that Bill was that it would morph into abortion on demand, and abortion on demand was not what we voted for in Parliament. We therefore have to be reassured that this Bill will not do the same thing. I am very concerned that, if it morphed into a euthanasia Bill, we would have a consultant in geriatrics walking through a ward saying, “I want to see those three people in those beds dead by the morning because there’s a bed-blocking issue”, and so forth. I am sure that nobody in the House wants to see the Bill become a euthanasia Bill.

Can we have an explanation from the noble and learned Lord, Lord Falconer, about what happened to the Abortion Bill and why it morphed, without Parliament having any input whatever, into abortion on demand? I am concerned that it might happen with this Bill as well, under the commissioner whom we are talking about. What checks can Parliament have to ensure that the Bill does not go down the same road as the Abortion Act?

My Lords, I shall speak very briefly to the Amendment in this group in the name of my noble friend Lord Wolfson of Tredegar. His Amendment 913A seeks to probe an issue raised by a number of noble Lords in this debate: namely, the means by which the assisted dying commissioner may be held accountable. As the Bill is drafted, and as we have heard, the commissioner is appointed by the Prime Minister. In his amendment 124, my noble and learned friend Lord Garnier would have them appointed by the Crown on the advice of the Lord Chancellor. The point that the amendment addresses is that, whoever appoints the commissioner, there ought to be a clear accountability mechanism and a process whereby concerns about the conduct of the commissioner can be investigated in response to formal representations. My noble friend suggests that representations might be made to the Prime Minister, but I would be very interested to hear from the noble and learned Lord what thought he and his co-sponsor have given to the way in which the commissioner will be held to account.

My Lords, given the size of this group and the need to keep my remarks within the speaking limit, I have taken a rather different approach to the structure of my speech, which I hope your Lordships will find helpful. Rather than going through the amendments thematically or in chronological order, I will structure my speech by first setting out some observations about the legal implications of some of the amendments. Then, I will outline what the Government see as operational workability issues presented by some amendments and, finally, I will turn briefly to drafting considerations. Essentially, I will be flagging issues by theme, but if your Lordships have any further questions relating to the workability of any amendments, I will be very happy to write to set out the Government’s views in more detail and place a copy in the House Library. I will not comment on all the amendments. If I say nothing about a particular Amendment, it is because the Government have no concerns.

As my noble friend Lady Merron, the Health Minister, and I have set out many times, the Government’s position remains that it is for Parliament to consider the policy, so I will not be providing a government view on the merits of any proposed changes or make any observations in a personal capacity.

In other debates on the Bill, your Lordships have asked how the Government plan to implement it. I will set this out at the outset. The Government have not undertaken any detailed implementation work that would precede the parliamentary process. Should Parliament pass the Bill, the Government will then undertake detailed work to develop a delivery model, which would involve engaging with stakeholders and delivery partners, including the judiciary. To answer the point made by the noble Baroness, Lady O’Loan, this relates also to NHS England and providers, although your Lordships may wish to note that the Bill does not specify where the provision of assistance may or may not take place.

A number of your Lordships, including the noble Lords, Lord Harper and Lord McCrea, the noble Baroness, Lady Finlay, and the noble Earl, Lord Howe, asked about the role of the Prime Minister. I remind the Committee that this is a Private Member’s Bill, so the proposal to designate the Prime Minister as the person who is to appoint the voluntary assisted dying commissioner was made by the sponsor, not the Government. It has nothing to do with the Government. It is up to noble Lords whether they wish to retain that provision.

The noble Baroness, Lady Finlay, asked me to confirm whether the standards in the Cabinet Office governance code would be adhered to. If it is the will of Parliament that the Prime Minister is the person who is to appoint the commissioner, the standard recruitment arrangements for prime ministerial appointments will be followed. These are made through an open, regulated appointments process, which includes selection by an assessment panel containing an independent member. Whether or not the Select Committees are involved will be a matter for the sponsor. The reason I shook my head at the noble Lord, Lord Harper—I meant no discourtesy to him as I did so—was that I thought, and continue to think, that it is a shame that he did not pass by the opportunity to make a party-political point, when, for example, his noble friend, the noble Lord, Lord Deben, was assiduous in ensuring that he did not. I felt it did not help and was not constructive, but I did not mean it discourteously.

I turn to the first of the three groups in my speech, on legal considerations and, specifically, the compatibility of some proposed amendments with the European Convention on Human Rights. The articles in question are Article 14, on protection from discrimination, and Article 6, on the right to a fair trial. On Article 14, Amendment 913 in the name of the noble Baroness, Lady Finlay, would prevent the employment of a person as commissioner, or a member of their staff, should they have links with any agency promoting assisted deaths. The Government wish to highlight that the amendment as drafted is unbalanced, creating a risk of breach of Article 14 of the convention. This would be avoided if it also prevented the employment of individuals who campaigned against assisted dying. In addition, the amendment as drafted would prevent the employment of a person in the commissioner role, or a member of their staff, should they have links with any agency that provides assisted deaths. But, if assisted dying were to be provided through the NHS, that would prevent the commissioner employing staff with relevant NHS experience.

Amendment 496C in the name of the noble Lord, Lord Weir, would involve differential treatment as between how reconsiderations of panel decisions would be made in the cases of, on the one hand, identified groups of people in the amendment and, on the other, those not belonging to those groups. If that is the intention behind the amendment, consideration would need to be given to whether the approach is proportionate and justified to avoid a risk of breach of Article 14. But if the intention behind the amendment is to afford everyone a right to hearings with the commissioner, but for only remote hearings to be permissible in the circumstances specified, then drafting changes would be needed.

The amendments which the Government wish your Lordships to note could interfere with the individual’s right to a fair hearing under Article 6 are Amendments 430 and 431, in the name of the noble Lord, Lord Sandhurst. These would introduce a new triage process, enabling the commissioner to allocate a case to be decided at first instance either by them or by panel members, but in doing so they introduce a disparity in the review process, allowing those whose case has been considered by panel members to access the simple review process provided by the commissioner, in accordance with Clause 18, while those whose cases the commissioner had considered at first instance could be reviewed only by the more complex—and expensive—process of judicial review.

I now turn to other amendments where the Government wish the House to note operational workability concerns, dealing first with a group of amendments dealing with the functions of the voluntary assisted dying commissioner. Amendment 128 in the name of the noble Baroness, Lady Foster, would place a responsibility on the commissioner to

“ensure compliance with all statutory safeguards”,

but in other places it creates a duty to identify or investigate. The Committee may wish to note that, as the Bill is currently drafted, the commissioner has no powers to ensure or enforce those actions.

Amendment 146, in the name of the noble Baroness, Lady Eaton, would place a distinct responsibility on the commissioner to monitor, identify and mitigate

“risk relating to the operation of” the Bill on care and nursing homes. The Committee may wish to note that requiring the commissioner to take preventable actions to mitigate such risk would suggest a significant change in the role of the commissioner and further amendments to the Bill would probably be required to make it workable, if that were the wish of the House.

On amendments dealing with resourcing of the assisted dying commissioner, both in the name of the noble Baroness, Lady Coffey, the Government have concerns that Amendment 914A might have an impact on the operability of an assisted dying service by placing arbitrary limits on the resourcing of the commissioner’s office when the demands on that service are currently unknown. Amendment 913ZA would remove the role of the deputy commissioner, which would mean only the commissioner would hold responsibility for appointing panel members and the reconsideration of panel decisions. If the commissioner were unable to perform their role through, for example, absence or illness, this could lead to significant delays in a process where time is of the essence.

Finally, I turn to drafting considerations. If, as a matter of policy, the Committee decides to support these amendments, the Government may need to revisit the drafting to ensure coherence with the statute book. I am not going to set out every example of this, in the interest of time, but, for example, Amendment 144A in the name of the noble Baroness, Lady Freeman, contains ambiguous terms. For example, it is unclear what “personalised information” means in practice. That is it from the Government for this group.

My Lords, first, I pay tribute to the noble Baroness, Lady Maclean, who referred to her own personal circumstances. Every one of us who have heard individual personal circumstances realises this is difficult to do, so I pay tribute to that and appreciate what she has done.

Secondly, I ask the Committee’s indulgence for 30 seconds to mention Mr Nathaniel Dye, who has been a campaigner for assisted dying and has been enormously helpful to me. He travelled through the whole process of this going through the Commons and the Lords. Tragically and suddenly, he died at the end of last month and today is his funeral. I know that his family, and everybody who knows him, would appreciate it if his involvement was recognised.

Noble Lords:

Hear, Hear!

Thirdly, I join with everybody in the Committee in deprecating vicious attacks on the noble Lord, Lord Sandhurst, and the noble Baroness, Lady Finlay. Any one of us who have been involved in this get vicious attacks outside. I agree with the noble Baroness, Lady Fox, when she says there is a slightly testy atmosphere from time to time in here. The best that we can do to try and fight off those attacks is to be as good-natured, funny and warm as we normally are. I am looking forward to the noble Lord, Lord Deben, being warm and funny again.

Fourthly, my Amendment 131A, which the noble Lord, Lord Harper, mentioned, would add that the Prime Minister is to consult the Welsh Ministers before making the appointment. I hope that nobody objects to that; it is what the Welsh Senedd effectively agreed by passing the LCM. When we come to that amendment, I will move it, as I detect no objections.

Finally, I am afraid I will not provide the noble Lord, Lord Moore of Etchingham, with any assistance in relation to the way he conducts himself in the Committee. He always conducts himself, if I may say so, with impeccable manners and courtesy. It is for each one of us to determine what is appropriate and what is not.

I will deal with the amendments quite quickly. They are all to deal with the voluntary assisted dying commissioner provided for in Clause 4. The voluntary assisted dying commissioner will be appointed by the Prime Minister. As my noble friend Lady Levitt, the Minister, has indicated, as long as that stays in, then it will be subject to an open appointment procedure involving an assessment panel.

The idea of the noble Lord, Lord Beith, is perfectly commendable: should a Select Committee look at the appointment? The way that would work in practice is that it would be for the Cabinet Office and the individual Select Committee to agree whether the appointment should be subject to a Select Committee procedure. I would be in favour of it. I do not think it is appropriate to put it into the Bill, but I can see real merit in it. Iwould not only have no objection to it, but I think it is a good idea.

Given that the noble and learned Lord thinks it is a good idea and that part of the reason—I think the noble Lord, Lord Deben, touched on this—many of us have concerns is that so much of the detail of implementing this is not set out but left for decisions, what is his objection and rationale for not coming forward with an Amendment and putting in the Bill so that it has to be done by a pre-appointment hearing rather than leaving it to a decision?

With respect to the Select Committees in the other place, they should be consulted and decide whether they want it.

In the Amendment from the noble Baroness, Lady Cass, she draws attention to the fact that the assisted dying commissioner has a function under the Bill. That function is to receive documents, make appointments to the assisted dying panels, make arrangements in relation to such panels—this means that he or she is responsible for making sure the process runs properly—and determining the applications for reconsideration of panel decisions. That means that, if a panel says no to an applicant who wants an assisted death, the voluntary assisted dying commissioner has the power under Clause 18 to say that another panel should look at it. He or she has that power in a semi-judicial function if there is an error of law in relation to it, so that is a function.

The commissioner also has a function to monitor the operation of this Act. If noble Lords go to Clause 49, they will see that he or she is given the power to make reports, give an annual report and identify things that may be of significance in relation to it. One should not confuse this role with monitoring, for example, the performance of doctors in relation to their role. I do not see the very specific functions and the obligation to monitor and give reports, as in any way in real conflict. I think they could be done by the same person, particularly if there is a deputy to be appointed as well. I note what the noble Baroness said, but I do not think it is necessary to make provision in the Bill for a separate role for somebody to do both. I have thought very carefully about it.

The noble and learned Lord, Lord Garnier, has been kind enough to indicate that he has had to leave, but I will deal with his point. He wants not the Prime Minister but the Lord Chancellor to make the appointment. The Prime Minister and the Lord Chancellor are both political appointments. We have chosen the Prime Minister because—even though I think there is practically nobody more important than the Lord Chancellor—the political world, for reasons I am completely unable to understand, regards the Prime Minister as more important. We have chosen the most important person in the Government to make the decision and, with the greatest respect to the noble and learned Lord, I do not think we should change that.

The noble Lord, Lord Weir, asked why we should have a judge. I am a great admirer of judges, and I declare an interest in that I am married to a judge. The reason why we have a judge is twofold. First, ex-members of the Supreme Court, the Court of Appeal or the High Court of England and Wales—it is England and Wales that we have in mind—have high standing. They are regarded as people of calibre, which is why they are put in. Secondly, one of the specific functions in the Bill is to consider whether the rejection by a panel is an error of law. That seems to us to be appropriate to be dealt with by somebody with high legal experience. Separately, the commissioner is somebody who has to issue rules and a process for dealing with it. That is the reason for doing that.

If that is the argument the noble and learned Lord puts forward, with which I entirely agree, does it not lead him to understand that the proposal of the noble Lord who spoke unwillingly earlier, to put this back where it was in the first place—basically, under the control of judges—would be a very good thing to do? Why has he not accepted that most of us would be able to support that, and therefore we would cut down the time we are spending on dealing with the situation when it is not there? If it is necessary, as he says, why not do the whole hog?

We have changed from a judge to a panel because, after considerable debate in the Commons, it was thought that having a legal person in the middle, a psychiatrist and a social worker gave greater reach and understanding of those issues. We debated that issue in full over a particularly long period of time on an earlier Friday. I am more than delighted to redebate it—however, I think that issue has been laid to rest. That does not mean one does not have to have a process whereby the doctors pass their findings to a panel, and that is the role, in part, of the assisted dying commissioner.

The noble and learned Lord talks about putting it to rest, but for many of us that issue is not at rest. I certainly supported the noble Lord’s Amendment 120, and I got the impression he was still thinking about its possible value—so, as far as many of us are concerned, it has not been put to rest.

I was pretty clear in my remarks that I favoured the panel process. When I say that it has been laid to rest, I accept that the House may take a different view from me, which I would completely respect. To deal with that, obviously there would be a vote on Report when we would decide whether we wanted the panel or the court process. I hope the issue has been laid to rest, but if it has not and I lose, so be it. I earnestly hope that we get there and reach a decision in relation to it.

The noble Lord, Lord Moylan, would like to replace the word “principal” with the word “sole”. I make two points in relation to that. First, all the assisted dying commissioner can do is that which is prescribed in the Bill, because he or she is a creature of statute. Therefore, there is nothing more that he or she can do beyond that.

The word “principal” is used, not “sole”, because we do not want to get into a completely barren argument subsequently about whether something that the commissioner does as collateral to the principal functions is covered. That is why “principal” is used and why I would not be in favour of changing the wording of the Bill in relation to that.

That point seems to me to be covered by the general power of the assisted dying commissioner under Schedule 1 to do anything that is appropriate or necessary for carrying out his functions, so I do not think that is a reason for not using the word “sole” and giving some assurance to those of us who are concerned about creep.

I think we will have to disagree on that. It is the normal way for that to be dealt with in drafting, so I am content with it. I am sorry to disagree with the noble Lord, but that is my view.

Amendments 135 and 436 from the noble Lord, Lord Frost, would place a duty on the assisted dying commissioner to check that all the paperwork is in order. Again, I have thought very carefully about that. The role of the commissioner, as far as the panel is concerned, is to pass the two reports on to the panel once he has received them from the doctor, for the panel then to consider whether that case is in order and meets the criteria—is the panel satisfied that there is no coercion and is it satisfied on capacity? I think it is neither appropriate nor necessary to add yet a further safeguard in that respect, because that is why the panel is there. It would lead to overlap and unnecessary delay without, in practice, any additional safeguard. The noble Lord, Lord Evans of Rainow, supported that. For the same reasons, I would reject his Amendment.

The noble Baroness, Lady Finlay, made a point about conflicts of interest. There would obviously be a conflict of interest if the assisted dying commissioner had a financial or commercial interest in any sort of provider of assisted dying services. That would be covered by the principles to which the noble Baroness, Lady Levitt, referred in relation to the way in which the appointment would go. I completely agree with the point by the noble Baroness, Lady Finlay, but I do not think there is a need to put anything into the Bill in relation to it.

A number of noble Lords have referred to the risk of mission creep—the idea that an enthusiast or proponent of assisted dying would operate in an inappropriately biased way. All that the assisted dying commissioner can do is act in accordance with the terms of the Bill. As the noble Lord, Lord Carlile, said, if for example the commissioner stuffed a panel with people he knew would take a biased view, he would be acting both improperly and illegally under the terms of the Bill. As the noble Lord said—and I agree with this—Schedule 1 opens the door to every sort of judicial review if that were the position and people became concerned about it. That goes to the amendment from the noble Lord, Lord Wolfson, which would provide for complaints to be made to the Prime Minister. Of course you could make complaints to the Prime Minister, but you certainly would not need the Bill to make that possible; there would be political accountability for the conduct of the commissioner, because the Prime Minister has made the appointment. Equally, there would be legal accountability in the form to which the noble Lord, Lord Carlile, referred.

Given the noble and learned Lord’s encyclopaedic knowledge of the statute book, can he tell us what went wrong with the Abortion Bill, which morphed without parliamentary consent, much to the concern of its sponsor, Lord Steel.

Would the noble Lord mind if I did not, as I think what one has to do is focus on this particular Bill?

It is all very well talking about access to judicial review when things go wrong, but the reality for the ordinary man in the street is that judicial review is largely out of the realm of possibility: it just costs too much. Therefore, we need to make sure that things are so laid down in the Bill that there do not have to be multiple requests for judicial review. For that reason, I ask the noble and learned Lord to consider this further.

I could not agree more with the noble Baroness, Lady O’Loan. That is why, in addressing these issues, we have been very specific about what the voluntary assisted dying commissioner can do in both Clause 4 and the schedule. What is more, that is why we have such a limited panel that can be made for the voluntary assisted dying commissioner. It has to work, and that is why it has been drafted in this way. The noble Baroness is absolutely right that judicial review is an expensive process, and it provides a guardrail, but ultimately there must be sufficient detail in the Bill to give the public confidence that the system will work. That is why we have, for example, restricted it to a Supreme Court judge, a Court of Appeal judge or a High Court judge. We are absolutely on the same page on that.

I turn to the noble Lord, Lord Sandhurst. My understanding of his Amendment 430—although I may not be correct—is that, where the two doctors agree, the assisted dying commissioner, if he or she agrees, can then short-circuit the need to go to the panel. That is my understanding of the amendment, which is interesting. However, my anxiety is that we would then, in every single case, almost, be getting rid of the panel. The position would be that you only ever get to the panel if both doctors have agreed. The sponsors presented the Bill to this House on the basis that, in every case, the safeguard is—to shorten it—two doctors and a panel. So I respect the thinking, because it is trying to streamline the process, but I do not think that it is appropriate, and it would undermine the safeguards.

The noble and learned Lord is right. When I introduced the Amendment, I did say that there might be problems with it, but I thought it was something that should be looked at.

Yes, I understand that.

I am grateful to the noble and learned Lord for his realistic acceptance of the difficulty of judicial review as a remedy for many people. I would be grateful if he could also reflect on the situation with family members: if the panel approves assisted dying, their remedy to challenge that is judicial review. We heard evidence in the Select Committee, particularly from Sir Nick Mostyn, that that is just fine. Many of us, particularly myself, do not feel that it is satisfactory for family members to have to resort to judicial review if they have evidence, for instance, that there has been coercion. Will the noble and learned Lord reflect on that, which may avoid further amendments later down the line?

I will certainly reflect on that, and may I express my gratitude to the noble Baroness, Lady Berridge, for facilitating the meeting with Professor Ruck Keene? It was incredibly helpful, and I genuinely appreciate it. Yes, I will reflect on what the noble Baroness said. I suspect there will be a similar answer to the one I gave to the noble Baroness, Lady O’Loan: we have to be as specific as we possibly can in the Bill, because judicial review is difficult for normal people, particularly in those circumstances. That is why, whether it is a court system or any other system, we must try to make this as clear as possible in the Bill.

Amendment 146, in the name of the noble Baroness, Lady O’Loan, says that the assisted dying commissioner should be able to investigate patterns. In particular, she cites what may happen in relation to care homes. I agree that the assisted dying commissioner should have that ability. He does have that ability under Clause 49(1)(a), (b) and (c); so, for example, if he is concerned about a pattern developing in care homes, he already has the power to monitor that.

The noble Lord, Lord Morrow, asked whether there should be a further Equality Act assessment. I dealt with that last time and said I had looked carefully at what the former commissioner had said and I did not think that a further impact assessment was appropriate, because, if you constantly make particular points that are covered in general, you are never going to get to an end of it. I do not think that the points the commissioner raised were ones that had not already been considered in the impact assessment.

I accept that there is a general power in Clause 49 to look at what is happening in relation to the regime, but I say again that there is an issue raised by Amendment 146 which definitely requires further consideration. I ask the noble and learned Lord to reflect again not just on the monitoring of delivery of the service, but on the arrangements for the delivery of the assisted dying process in care homes, where people are vulnerable, isolated and largely unsupported in many cases. There is a very serious problem, given the remarks of Age UK, care homes, et cetera.

I will certainly reflect on it, but the issue of somebody who is isolated and alone in a care home is why there are five steps before you get to assisted dying, and the question is whether the sequence of doctor number 1, doctor number 2, doctor number 1 again, the panel, doctor number 1 again is a sufficient safeguard. My own view is that it is a sufficient safeguard and it is particularly focused on protecting the vulnerable.

My Lords, may I just—

I should get on. I apologise, but the noble Baroness has had a very fair crack at that particular whip.

I come to the question of the noble Baroness, Lady Maclean, which is: should there be a register of the interests of the assisted dying commissioner? I understand what motivates that. I do not think that that is necessary because, as my noble friend Lady Levitt said, that is something that would be dealt with by the normal process governing conflicts of interest. There would not necessarily be a record of it, but it would be something that would have to be disclosed before a decision was made.

The noble Baroness, Lady Grey-Thompson, raised various issues in relation to the appointments process, but I hope that I have dealt with them by referring to the process that would apply. I think I have dealt with all the other points, including the point from the noble Earl, Lord Howe, about Amendment 913A.

I am still genuinely not quite clear who the noble and learned Lord thinks the commissioner, and indeed this whole process, is ultimately accountable to. With the rejection of the Amendment from the noble Baroness, Lady Cass, and various others, I am trying to work out who ultimately is going to monitor this if there is public concern about the law being interpreted much too loosely, or things are going wrong. Who is going to keep a permanent eye on what is happening?

The nature of the appointment is that it is an appointment by the Prime Minister. He is politically accountable for the appointment. The assisted dying commissioner, like so many other appointments made by a Minister, has legal duties, but, if you are looking for political accountability, it is the person who is responsible for his or her appointment. That is the way that public appointments operate.

I am sorry, but the noble and learned Lord has not addressed Amendment 144A.

I apologise. The noble Baroness, Lady Freeman, emphasised in her Amendment 144A the importance of providing impersonalised information and assistance in relation to reaching a structured decision. She speaks from considerable experience, and I express my gratitude to her for talking to me about it and providing me with real assistance.

That would have to be dealt with by codes of practice issued by the Secretary of State under Clause 39. If there were problems—for example, the codes of practice were thought not to be adequate or were giving rise to problems—it would be for the assisted dying commissioner, under Clause 49(1), to report or indicate that something was wrong. The points the noble Baroness makes are important and I apologise for not dealing with them.

The noble and learned Lord did not speak at all to his Amendment 480 in this group. Is he planning to address it later in group 3? I am conscious that he did not particularly address my amendments, but I assume it is because he disagrees with them, which I understand. However, Amendment 480 has not been talked about at all. It is okay if he wants to address it in group 3.

I apologise. I will talk about it in group 3.

Long speeches are unpopular at the best of times, but particularly as I now stand between noble Lords and lunch, so I will try not to make one. It has been a very useful group. We have had a lot of discussion about the appointment process, transparency, conflict of interest and how we ensure public confidence in the commissioner. I think we have reached a conclusion on that—one which may not satisfy everybody, but we have come to a place on it.

Beyond that, a lot of the concern has been about things that fall through the cracks, such as my noble friend Lady Freeman’s concerns about patient information, data, risks and patterns in care homes, and family involvement, which is important. My reflection is that I accept the noble and learned Lord’s view that we do not need to separate a delivery and a monitoring role, but it still seems as if the assisted dying commissioner, even acting with the greatest integrity, needs eyes in the back of his or her head to pick up on issues such as local fluctuations or other aspects of concern. I look forward to hearing about other ways in which things are going to be monitored carefully, whether by the CQC or NHS England, as the noble and learned Lord suggested, so that we can be reassured on those matters. With that, I beg leave to withdraw Amendment 122.

Amendment 122 withdrawn.

Amendments 123 to 131 not moved.