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Intro: [00:00:00] You are listening to Parliament Matters, a Hansard Society production supported by the Joseph Rowntree Charitable Trust. Learn more at hansardsociety.org.uk/pm.

Ruth Fox: Welcome to Parliament Matters, the podcast about the institution at the heart of our democracy, Parliament itself. I'm Ruth Fox.

Mark D'Arcy: And I'm Mark D'Arcy. And welcome to the latest in our special series of podcasts, tracing the progress of the Terminally Ill Adults (End of Life) Bill, the Bill that would legalise assisted dying in England and Wales.

Ruth Fox: And this week we're in the rather magnificent law offices of Gibson Dunn in Temple in London, overlooking the Thames, and we're joined by Lord Falconer, the former Lord Chancellor, Labour Peer and longtime advocate of assisted dying, but he's the co-sponsor now with Kim Leadbeater, of the assisted dying Bill.

It's arrived in the Lords and he'll be taking it through its next stages. So Mark and I are here with Lord Falconer. Welcome to the podcast.

Lord Falconer of Thoroton: Thank you very [00:01:00] much. I'm very glad to be here and I'm very glad you are here.

Ruth Fox: So, we just wanted to explore where we are with the Bill and what happens next.

Mark D'Arcy: But my first thought is, this is, I don't know, your third, fourth, fifth attempt to get an assisted dying Bill through the House of Lords. Why is this an issue that matters so much to you? Because there's obviously personal conviction behind this.

Lord Falconer of Thoroton: I have personal conviction behind it from my own experience, but also the more you go into the issue, the more you discover how incredibly unfit for purpose the current law is. So the law at the moment makes it a crime to assist anybody to commit suicide. That means, for example, if you want to accompany somebody you love to Switzerland, where it's lawful, buying the tickets to take them to Switzerland, knowing that their purpose is to take their own life at Dignitas, that's a crime which has a maximum [00:02:00] punishment of 14 years. The Director of Public Prosecutions has indicated over years that he won't prosecute people if they're motivated by compassion, but he's absolutely clear that if, for example, you're a medically qualified person and you helped somebody you love to die, then he would prosecute you because it's only amateur assistance that he's prepared to authorise so you have a completely guarded system, effectively only available to people who've got the energy, the wherewithal, and the money to go abroad. Or as so very often happens, people who are willing to take their own life without any assistance so that they don't involve their relatives.

Stuart Broad, the well-known cricketer's father, Chris Broad, who was himself a famous cricketer and an umpire, his wife was ill, she hoarded pills, she took the [00:03:00] pills and the first that her husband knew it was happening was an email from her saying she'd done it. She was absolutely determined that he should not in any way be implicated. Because the number of people who've spoken to me and said, it's not just that I lost my loved one, but when I came back from Switzerland, I was then investigated by the police. It took months. The police were incredibly sympathetic. But the burden over my head of having a police investigation going on was terrible and the law needs to change.

Mark D'Arcy: And you talked about your personal experience in this. Is this a relative, a close friend?

Lord Falconer of Thoroton: Do you mind if I don't talk about that?

Mark D'Arcy: I understand, it's not always an easy thing to talk about. I'm sure you've encountered so many people during the course of this who've wanted to make the case for assisted dying because of their own circumstances, but you've also encountered, as you become the proponent of this, lots of people who are instinctively and in principle very, very opposed to it.

Lord Falconer of Thoroton: Yes, and indeed I think you'll find there's a small [00:04:00] group of people who are very strongly opposed to it. The great majority of people I speak to say, as long as it's properly safeguarded, they're in favour. And there are some people, and I include myself in this, who are working to try and make it happen, but opinion polling over 20 years has indicated that there's 70 and 80% are the sorts of figure you look at when you ask people are they in favour of helping those who are terminally ill to take their own life if their death is certain from the illness.

Ruth Fox: If we just talk about where we are at the moment. So we've had Second Reading in the House of Lords in September, and unlike in the Commons, there wasn't a formal vote. Not unusual in the Lords, but that means we don't exactly know other than who spoke in the debate exactly what the numbers are in terms of support and opposition.

One of the things that emerged at the conclusion of that Second Reading debate was the decision to set [00:05:00] up a Select Committee to take evidence on a limited basis over several weeks from ministers, from yourself, from Kim Leadbeater, from coronial services, and from some of the health professionals that would be engaged in the Bill.

That Committee has now reported, which means that you'll be able to move forward later this week on the 14th of November to Committee of the whole House, so get down to the clause by clause scrutiny and amendments of the Bill. That Select Committee has published all its evidence. Has it led you to think differently about any of the issues, to conclude that actually there are some technical issues that really need fixing in the Bill or broadly, was it pretty much what you expected?

Lord Falconer of Thoroton: Just to go back a little on the account, I mean. What's happened here is it's gone through all its stages in the Commons, and it came out of the Commons in June or July. We then had a Second Reading, and the Second Reading lasted for two days on successive Fridays. So there was [00:06:00] probably 15 or 16 hours of debate, and it was very, very high quality debate.

I would say that wouldn't I? But I mean, you two are experienced parliamentarians. You could probably tell a good debate from a bad debate.

Ruth Fox: Parliamentary watchers. I don't think we are experienced parliamentarians.

Lord Falconer of Thoroton: I mean, my sense of it was that it was a very well informed debate. It was incredibly moving debate. A lot of people referred to their own experience in relation to it, but a lot of people brought medical, legal, psychiatric experience to the debate. It was pretty high quality. We agreed during the course of that debate that there should be a Select Committee, the purpose of which was to hear evidence about the Bill.

I was content to support that as long as it did not endanger the time scale for the Bill. And indeed, I reached agreement with those who are supportive of the Select Committee that we could do it without endangering the timetable. So I [00:07:00] supported it. The Committee, I think, met over three successive weeks and it had 14 evidence sessions at which it had panels of witnesses, so it's had 50 or 60 pieces of evidence. It's not had any evidence from patients who are going through the experience, and I think that's a lack. It's had only limited evidence from foreign experience because foreign experience is important, that it had some evidence from New Zealand, but nothing like that. I mean, I've attended many of the hearings and a lot of the evidence is very, very interesting. There's a lot of interesting evidence about New Zealand. There's a lot of interesting evidence as well from Ministers. So we heard from Sarah Sackman in the Ministry of Justice with officials, and we heard from Stephen Kinnock in the Health Department, and there's a lot of it worth looking at closely.

But Ruth, your question was, was there new material there? Having been around the houses for about 14 years in relation to this, [00:08:00] the issues were very much the sorts of issues that had been debated over a long period of time, but it was useful in many cases that some new angles were given on it.

Ruth Fox: Is it informing your thinking in terms of any new amendments that you're going to bring forward?

Lord Falconer of Thoroton: I can't think of how one would formulate a new amendment in relation to it. I think, and we may come onto this later, there was quite a lot of focus on the fact that some of the powers were too vague in the Bill, that we'd been delegating too much power to the Minister, and there was some discussion about how one would deal with that. It was my intention after seeing the Delegated Powers Committee's report that we should address that, and there were some helpful thoughts in relation to that, and I don't want to say that there weren't some ideas in relation to that. But in terms of the big substantive issues, particularly on the safeguards, I thought broadly, the Select Committee didn't suggest that the Bill was insufficiently safeguarded.

Mark D'Arcy: Well, we'll talk about some of those issues in just a moment, but clearly some people do [00:09:00] think that the Bill needs an awful lot of changes made to it because for the forthcoming Committee stage that your Bill's going to start on Friday in the Lords, they're already, last time I checked 673 amendments down.

Ruth Fox: It's now 737. Last time I looked.

Mark D'Arcy: 737 and counting. There is a whirling calculator somewhere in the House of Lords going up and up and up. Do you detect an attempt to filibuster your Bill because that is an awfully large gross tonnage of amendments?

Lord Falconer of Thoroton: I think there will be some people who will try and filibuster. I think the vast majority of the Lords are incredibly keen to do what we do well, which is scrutinise the Bill. The number of amendments is utterly disproportionate to the Bill, but I'm absolutely confident that it will get good scrutiny. And I also think Peer pressure, and I use that word advisably, here will be for the Lords to do well in relation to this. If anybody thought that there was procedural [00:10:00] shenanigans going on, i.e. attempts to delay, then that would be not good for the reputation of the House, but maybe more significantly would not be good for this Bill basically.

The Commons have passed this Bill with a majority, I think it's 23 in the Third Reading. When you have an issue like this, which is an issue of conscience where neither side, Tory or Conservative or indeed anybody else, will generally put it into their manifesto, then somebody has got to decide whether one makes the move, whether it be abortion, whether it be legalising homosexuality, whether it's what approach you take to capital punishment. And if the Commons, the elected representatives, have decided after very prolonged debate, there should be an assisted dying bill, then the role of the Lords is not to say no. The role of the Lords is to say, well, here's some improvements you can make, and then the Commons should think about whether or not they want to agree to those improvements. Far from [00:11:00] this being a bad Bill, this is a Bill that has had more scrutiny than most bills, in particular government bills, get.

You'll know, for example, the Lords at the moment is considering something called the Education and Wellbeing Bill, that's a significant Bill. For example, it introduces for the first time proper regulation of home schooling, but it's got a range of other educational things that it's doing. It had 40 hours of consideration in the Commons, and it's a longer Bill than the assisted dying bill. The assisted dying bill, including all its stages in the Commons, had a hundred hours, and the reason for the difference is there were guillotines in the Education and Wellbeing Bill and you fanatics from Parliament will know what the effect of a guillotine is. Once the knife falls, as the Commons so graphically say, all further debate is [00:12:00] curtailed, which means we in the Lords frequently get bills where the knife has fallen and great wodges of the bill have never been debated in detail.

Ruth Fox: Well, we've written and spoken and talked on this podcast about the fact that the Bill has had more scrutiny in the Commons than yes, government bills normally do because of programming, but what it hasn't had is the pre-preparation. Kim Leadbeater had to produce the bill. Yes, there were models out there: your bills, the Health and Social Care Committee had looked at these issues, she had a very professional drafter in the former Government head of the Office of Parliamentary Counsel, who was able to draft the initial text for her.

But nonetheless, a lot of the pre-preparation about how this assisted dying service will operate in practice, because the Government is neutral, they've not been able to get into the detail of that. So that's why we've got a lot of delegated powers and that's where a lot of the discussion comes in.

Lord Falconer of Thoroton: Well, hold on. I disagree with that proposition. First of all, I [00:13:00] would regard myself as being quite experienced in doing government bills. I've done a whole range of government bills and led on them, including as it happens, the Mental Capacity Act that provides the capacity provisions for this particular bill. I have never seen a piece of legislation more consulted on than this one because we've had, it's something like five or six bills on this subject over the last, is it 15 years? We've had a number of Select Committee reports, the most recent one over 190 pages from the Health and Care Select Committee. And they were doing a report in which they explicitly said, we're not going to take a view yes or no, but this is a comprehensive study of assisted dying positions all over the world.

Ruth Fox: But that's policy. And direction of policy. And application of policy. And the legal text that underpins that. But what we're talking [00:14:00] about here is the legal text of a bill, specifically about how this proposition, with all its advantages and disadvantages, is going to be implemented. And you haven't had the pre-preparation in government about how that's going to work in terms of the NHS.

We are not clear on how it's going to be financed. It emerged at the Select Committee that, they didn't make recommendations, but they did have the evidence sessions. They heard from the Minister who talked about reprioritisation of funding, being able to do it within the current spending review envelope, but we don't know further than that what it means.

Lord Falconer of Thoroton: Well hold on again, that's not quite right. First of all, the Department of Health and Social Care produced 151 pages of an Impact Assessment, and that's only dealing with the financing of it. The idea that we don't know how it's going to be financed is completely wrong. Secondly and separately, in relation to the absolute guts of the bill, should it be a terminally ill bill or something wider? It should be a terminally ill bill. The detail of the [00:15:00] safeguards has been fully debated and were reflected somewhere or another, except possibly the panel, in almost all the considerations by the Select Committee and in other parts of the world.

The bit that you are referring to, the delegated powers bit is how should the Health Service introduce it? And the other bit that is significant in that respect is what substances should be used in relation to it. Always how it was going to be introduced in the Health Service was something you had to give a considerable degree of discretion to the Health Service themselves. It's an executive decision about how you introduce it in the Health Service and also how you regulate, because there are two separate issues. How do you introduce it in the Health Service and how do you regulate it when it's provided by private providers? There was never going to be a bill, which said it's going to be introduced, in this way, for example, regionally [00:16:00] or locally or only nationally, that was always going to be a decision for the executive.

So again, I think that's unfair.

Mark D'Arcy: I want to take you back, if I can, to one of the things you said a little bit earlier, which was that the House of Lords job was just to polish this Bill up a bit, find little problems with it, see if it could sort them out, that kind of thing. That's a principle that not everybody in the House of Lords agrees with on this, to put it gently. I've seen plenty of occasions where a majority in the House of Lords has gutted government bills, and I don't see why just because this is a Private Member's Bill, there's a constitutional principle suddenly that the House of Lords couldn't, if it wanted, completely rewrite your Bill or even defeat it.

Lord Falconer of Thoroton: Well, first of all, in relation to improving the safeguards, there'd be a question about the extent to which gutting the Bill was appropriate, but if they've got better safeguards, let's hear about it, and if they want to make amendments in relation to it, those can be debated. That is a very, very different proposition from saying no to the Bill.

If the position [00:17:00] is that the Commons have said yes to this Bill on the basis of these safeguards, then they could come back with different safeguards and the Commons could say no and go back to the safeguards they wanted. My sense, particularly listening to the Select Committee evidence, was that there wasn't really a fundamental disagreement on the safeguards.

There are some people who say, I don't want this bill at all. You can never adequately safeguard the position, therefore, no, to the Bill. There are others who say we need much more clarity, for example, about people being told what their palliative care options are. But if and insofar as there are people who are saying it's open to the Lords to say no to the Bill, i.e. saying nothing goes back to the Commons or something which is essentially a wrecked version of it, then I [00:18:00] strongly, strongly disagree with that proposition, and I suspect those who are saying it are saying it only because they oppose the principle of assisted dying.

Mark D'Arcy: But you can disagree with it without it being unconstitutional.

You were saying it's almost a constitutional principle that the Lords cannot really interfere with the core of this Bill.

Lord Falconer of Thoroton: I'd say it is a constitutional principle, they cannot say no to the Bill. I am saying that is a constitutional principle, and the reason I'm saying it is a constitutional principle that even though it's not a manifesto bill, it could never be a manifesto bill, even though it's not a government bill, ultimately, in our constitution, the key constitutional underpinning is the primacy of the Commons. There will be occasions when it might be appropriate for the Lords to say no to a Bill that had been passed, for example, where in the eyes of the Lords, this fundamentally undercuts one of our most basic constitutional principles, but plainly [00:19:00] assisted dying does not fall within that category.

Ruth Fox: The House of Lords Constitution Committee didn't quite agree with you on that though, did they?

Lord Falconer of Thoroton: They did not.

Ruth Fox: Because they take the view that we take, that it's not constitutionally improper for the House of Lords to reject the bill, but whether it's politically wise is a different question given the support in the House of Commons.

But anyway, I think we are probably going to...

Lord Falconer of Thoroton: No, but I mean, I do think that's a very, very wrong view. And the reason I think it's a very, very wrong view, you are allowing the Lords to decide the principle of assisted dying and that is not correct in a constitutional system that depends upon the primacy of the elected House

I think you are fundamentally wrong when you say, oh, it's just politically unwise. I think you're absolutely right when you say it would be politically unwise, but you are absolutely wrong to say, it's entirely a matter constitutionally for the Lords to decide.

Mark D'Arcy: Let's [00:20:00] take a look at some of the things that people might want to change in your Bill. In particular, and a lot of attention is being paid to an amendment from Luciana Berger, Baroness Berger, who was to some extent the author of the Select Committee that had a detailed look at the Bill after Second Reading. She's proposing that a stiffer test is needed for the person's capacity to sign up to assisted dying than the one in the Mental Capacity Act, which as you mentioned, you were the minister who put that through the House of Lords in, I think, 2005.

Lord Falconer of Thoroton: Correct. When I was sponsor for the Bill, throughout all its passage though, of course, I only appeared in the Lords.

Because it was a Ministry of Justice Bill. And you'll know, you'll have Lords ministers doing the Lords bit, and they'll always be somebody in charge of the bill. And I happened to be the Secretary of State for Justice and the Lord Chancellor at the time.

Mark D'Arcy: But, the argument that they're making is that while the tests for mental capacity in that Act are fine for most of the sort of common or garden uses to which it's put, something more stringent is needed [00:21:00] for an individual's decision to apply for assisted dying and that in particular, the kind of presumption that they have, capacity unless proven otherwise, is too weak for this purpose.

Lord Falconer of Thoroton: Yes, and you are absolutely right to identify that the real issue is not the test. Because if you look at the test that Luciana Berger and others are providing, it's broadly the same test. The objection is to the presumption. Because the Mental Capacity Act starts from proposition that people should be presumed to have capacity unless it's shown they are not. The moment that there is an issue about capacity, then the process very frequently undertaken by doctors is they've got to first of all identify is there an underlying medical or mental condition that gives a rise to a question about capacity?

And if there is, does it in fact deprive the person of capacity to make the relevant decision. Everybody who has to enforce that, whether it be the doctors, for [00:22:00] example, in considering the question, when the person with motor neuron disease wants the ventilation to stop when they can't breathe on their own, which will lead to almost certain death, do they have capacity for that with the presumption in play?

Doctors are very content that it works. We heard evidence both in the Commons and the Lords from Chris Whitty, who is the Chief Medical Officer, he said it would be completely wrong to introduce some new test for capacity when the old test works well, is understood by doctors and is of considerable relevance in decisions of life and death of the sort that I've described. So I strongly disagree with those who want to keep the Mental Capacity Act, because that's in effect what the amendments are doing, but remove the presumption.

Ruth Fox: Just on the Chris Whitty point, he got into a bit of a [00:23:00] tangle in the Commons with his evidence, didn't he?

And he withdrew a bit of it. So can you just clear up exactly. My understanding was that he argued that the Mental Capacity Act required a higher level of mental capacity for major medical decisions compared to minor ones. And actually there is, there isn't a requirement for that.

Lord Falconer of Thoroton: The way the Mental Capacity Act works, this is perfectly straightforward, you've got to be absolutely clear, that there's capacity for each decision, but you recognise that the more major the decision, the clearer your mental capacity has got to be. So this is the example, given a life and death decision, requires a much clearer and higher degree of capacity than a decision about what food should I eat this afternoon.

And in so far as Chris didn't completely reflect that, he clarified that the position is as I have described it.

Mark D'Arcy: Another issue where one of the witnesses to that special Select Committee [00:24:00] we've been talking about went in very hard. This was Thomas Teague KC, who was the former Chief Coroner, was that he was very concerned that Coroners would not routinely be involved in investigating assisted deaths. He was saying that this could be quite a rapid process, a paper inquest, rather than having full dress formal proceedings, but if it was just left to Medical Examiners, Medical Examiners wouldn't necessarily be equipped to detect that there were irregularities in the process leading up to an assisted death, that it had been manipulated or someone had been coerced. And that was something that was much more the expertise of a Coroner. So why is it that Coroners are not routinely brought into this process, just as a matter of course.

Lord Falconer of Thoroton: Because the essence of an inquest, or perhaps more significantly the essence of an investigation that the Coroner's officers do, and they frequently investigate to start with and then decide there's no need for an actual inquest, is [00:25:00] an unexpected, unusual, or...

Ruth Fox: Unnatural death.

Lord Falconer of Thoroton: Unnatural death, thank you. Those are the three words, the three un's. We start from the proposition that an assisted death, which is attended by many, many more safeguards than normal deaths, should not of itself give rise to that trigger that Ruth has just helped me with. If, for example, family members think there was something untoward, then they can raise it with the Coroner's officers just as they can in any other situation.

But the idea that if you have an assisted death, the consequence is there will automatically be an investigation by the Coroner is wrong, I think. I think there needs to be something more than you simply choosing what is a much more safeguarded process of death than that that would normally apply.

Mark D'Arcy: So the argument here is that the safeguards are as it were front loaded in deciding to make that choice in the first place.

Lord Falconer of Thoroton: Well, it's a very front [00:26:00] loaded decision that you are making, which is very, very safeguarded. If, for example, you decided not to continue with treatment for motor neurone disease ventilation, for example, you decided not to have any more chemotherapy, or you decided not to take nutrition, which is quite a common way that people end their lives. Does that automatically give rise to a Coroner's investigation? Answer, no, it does not. Why does it not? Because it doesn't fall within an unexpected, unusual, or unnatural death. It might be that there are suspicious circumstances. It might be that somebody was over persuaded to stop taking nutrition or not take the lifesaving treatment. You need something more than that, and if you're not having an inquest in the circumstances that I have just described, these are the non assisted deaths, it seems to me [00:27:00] to be wrong and also painful for those who have just lost the person that they love. So I disagree with Thomas Tague, and I think quite a lot of people engaged in coronial activity also disagree with him.

Ruth Fox: The lady who gave evidence to the Select Committee on behalf of Medical Examiners expressed concerns about whether or not they would have this training and the skills to look at the kinds of issues that assisted deaths would raise. So questions about training and support coming to play. And there was also a question about whether or not the conscience clause, the ability to opt out for Medical Examiners would apply.

What's the position in the Bill as drafted at the moment?

Lord Falconer of Thoroton: I think the position is that Medical Examiners cannot opt out because they're not, as it were, playing any part in the process in relation to the actual assisting of somebody to die. I very much understand the point that the Medical Examiners are making. A Medical Examiner is looking at the medical aspects of it and assume [00:28:00] in an assisted death that the process of death envisaged by the taking by the patient of the substances is exactly as expected, then that's the area of expertise that you would expect a Medical Examiner to have. You would not expect a Medical Examiner to be able to start interviewing people and saying, this is overstating it, but did you put undue pressure on the person to agree to the, that's not their area of expertise, but that's the position in every medical exam.

The Medical Examiner is not, as it were, Sherlock Holmes, the Medical Examiner, is simply giving details of the medical cause of death. From that, a Medical Examiner might draw some conclusions, not in an assisted dying case of how somebody had died, but I don't think anybody suggests that Medical Examiners become a broader sort of detective.

Ruth Fox: Yeah. Well, on that note, should we take a quick break? Yes. And we'll come back in a few minutes to talk about some other aspects of the Bill.

Mark D'Arcy: And we are back and Lord Falconer, another issue that's been raised very heavily in that Select Committee that [00:29:00] we keep referring back to is the issue of how Parliament goes about approving the substances used in the assisted dying process. There are some people who are arguing that maybe there should be a debate, almost routinely, every time a new drug is added to the list of substances used for assisted dying, there are some people who say that the existing proposals in the Bill are just too weak.

Where do you stand on that? Is this an area that needs to be tightened up? Because they're also concerned around the whole mechanism being, frankly, a little vague.

Lord Falconer of Thoroton: It's a point that's raised by the Delegated Powers Committee, and the Delegated Powers Committee recommended that what should happen is the first substances to be used, and by first, I mean before there might be developments in medicine that make other substances more appropriate as time goes on, should be on the face of the Bill. And thereafter, there should be some process by which experts, as it were, in effect by the Secretary of State and determine what the substances should be.[00:30:00]

I am against the proposition that politicians debating the Bill should determine what the substances are. I think what the public would expect in relation to the approval of substances to be used in any medical procedure, and this would be a medical procedure, would be determined by experts, not by politicians choosing between different substances and saying what they preferred.

So neither for the first choice, i.e. at whatever the current medical science is at the time the Bill comes into force, nor subsequently should it be decided by politicians. I think what the Bill needs, and I take the Delegated Powers points in relation to this, we should set out what the purposes of the regulation should be, which should obviously be in particular, making sure that the best substance is chosen in the way that will give the easiest and less side affected death. [00:31:00] But it should be for an expert body to decide that, not for the politicians.

Ruth Fox: And this is an interesting point about where Parliament's role is in relation to delegated powers and whether or not there should be a debate and a vote. And therefore we're into the debate about whether it should be the low end negative scrutiny procedure or the higher affirmative scrutiny procedure.

Lord Falconer of Thoroton: I'm being clear that in relation to the actual choice of drug, it should not be high or low. It should be an appropriate body that should decide it. I do not want now or in the future politicians to say, look, why don't you choose this one rather than that one?

Ruth Fox: Your Bill earlier this session though, had the designation of the drug as the affirmative scrutiny procedure.

Lord Falconer of Thoroton: This is the one that that I put down. Well, I mean, that may be right, but I mean, detailed scrutiny, thinking deeply about this, and in particular because of the delegated powers provision, it seems to me it's very wrong that Parliament should be [00:32:00] making those sorts of decisions, they should be putting in place like they do for all medical procedures a process that, and I think this is what the public would expect, where it's the experts that decide.

Ruth Fox: So you'd consult the experts and expert advisory body, but don't you think that there might be a wish on the part of politicians to discuss the political and policy and legal implications of some of this?

I mean, some of these drugs have side effects. There's been issues about what types of drugs are used in jurisdictions, what the effects are, sometimes they're quick working, sometimes they're not, sometimes they're licensed, but not for this purpose. I mean, are those not areas that politicians should perhaps take an interest in.

Lord Falconer of Thoroton: They should definitely take an interest in. But ultimately the decision should not be made by the politicians, in my view. I mean, the idea of politicians sitting and debating, I think the side effects of this one are not as bad as the side effects of that one, is not really appropriate.

Mark D'Arcy: Should there be some form of appeal process in the assisted dying system?

Because there is a suggestion that sometimes maybe decisions ought to be [00:33:00] reviewed and challenged in some way before someone can be allowed to avail themselves of an assisted death.

Lord Falconer of Thoroton: For the person applying for an assisted death, if the Panel say no, they can ask the Commissioner for Voluntary Assisted Dying to allow another panel to look at it, and I think that's entirely appropriate.

I do not think it is appropriate to allow other people to challenge the Panel because the essence of this is autonomy. There could be situations in which, for example, evidence comes to light, which suggests that the panel hadn't been properly informed, and there are a whole range of legal processes that could then be used, for example, judicial review.

But in terms of the process laid down in the Bill, I am not in favour of giving anybody other than the patient the opportunity of a second go.

Ruth Fox: Another aspect of the Bill, which got quite a lot of coverage at the Select Committee and it was debated quite extensively [00:34:00] in the Commons, is this question of whether or not there should be advertising of the assisted dying service in the Bill.

At the moment, the Minister will have a broad power to specify exemptions to a ban on advertising. They'll have considerable discretion about that, but we don't really know at the moment what is understood by the term advertising, it's not defined in the Bill. And obviously in the digital world we live in, advertising today is not like it was 10 years ago, and it won't, no doubt, be like it is in the future.

So what's your thinking on the direction of travel on that? Because people don't want to see it advertised in this big public way. There's concerns about implications for young people in areas like TikTok and so on.

Lord Falconer of Thoroton: I agree. I'm very strongly against advertising assisted dying services. I think obviously there's got to be some ability to give what is properly described as information about assisted dying services, but the idea of promoting them is wrong.

The Delegated Powers Committee referred to the fact that the provisions in relation to [00:35:00] advertising are skeletal. They are in effect saying that the Minister should come forward with proposals about how, or regulations, not proposals, about how to ban advertising. But I think we need to put more on the face of the Bill, and I would envisage doing that during the course of Committee or the Report Stage in the Lords.

Mark D'Arcy: This is a kind of generic problem, really, isn't it, with almost anything that involves getting into regulating the internet is that the target is moving so fast. It's very difficult for Parliament or anybody else to keep track.

Lord Falconer of Thoroton: Very much so. The problems about how you regulate online, I mean, you can, you'll have seen it in watching the way that Parliament's tried to deal with it on the Online Harms Act, which has, gave rise to great controversy. But in answer to Ruth's specific question, the Bill makes it clear advertising is to be banned except in the context of giving information. We need to give more detail in relation to that, and we will.

Mark D'Arcy: One other issue that was repeatedly raised was that having the [00:36:00] Bill would kind of foreclose the option of improving palliative care.

In this country, if you have assisted dying as an option, it's all too easy for governments to then ignore improvements in hospice and palliative care that might mean that people wouldn't feel that their end was going to be so horrible that they needed assisted dying. Now that's something that the Health Minister Stephen Kinnock attempted to deal with. He was saying that actually the Government is already working up proposals to much improve palliative care. What are your benchmarks on that? What would you like to see happen there?

Lord Falconer of Thoroton: I'd like more money to be spent on palliative care. I would like people to focus much more on palliative care. You know that the Select Committee in the Commons that looked at this and reported in the Spring of 2024 said the evidence from other countries was, introducing assisted dying didn't reduce focus on palliative care. If anything, it increased the focus on palliative care. A point that Stephen Kinnock made in his evidence to the Select [00:37:00] Committee. You know as well that there has been a hundred million pounds worth of extra funding recently announced in relation to palliative care. And the hospice movement itself said that money wouldn't have come, but for the debate provoked by the assisted dying Bill.

So far from reducing focus on an expenditure on palliative care, I think it will have the effect of increasing it.

Ruth Fox: Do you think that a consequence of this Bill will be that the government has to amend the principles of the NHS, the founding principles set out in the NHS Act? That's something that's been raised as one of the consequences of the delegated powers and how this assisted dying service might operate, that you might need to do that.

Lord Falconer of Thoroton: Are you referring there to the 2006 Act, which contains a provision to the effect that the job of the Health Service is to, this is not the right language, to fight disease. It's something like that.

Ruth Fox: It is what was in the original act in the 1940s replicated in the 2006 act about preserving life and so on.

Lord Falconer of Thoroton: It [00:38:00] might do. I don't think, however, that there is any real doubt about what the purpose of this Bill is and if it becomes law, whatever the precise terms of the 2006 Act, Parliament is giving an instruction. I want there to be an assisted dying law and I want it to be available in the health service. I don't if you referred to it on air, you refer to Clause 41, and that is not just, you "may" introduce regulations, you "must" introduce regulations, which effectively allow for an assisted dying scheme in the health service.

Ruth Fox: But the only provision there is that has any clarity, I suppose, about how it'll be implemented is that it must be free at the point of delivery, in keeping with the NHS.

But the rest of it will be for Ministers to decide through regulations, how they will implement it.

Lord Falconer of Thoroton: That would be the normal way in which a new choice within the health service would be introduced. You wouldn't expect [00:39:00] Parliament to say, if we've discovered a particular new treatment for cancer, Parliament would by detailed legislation indicate how it's going to be introduced. For example, you could have special commissioning or you could have commissioning by integrated care boards, or you could have commissioning direct by the Secretary of State. You would normally be leaving those sorts of choices and the detail of it to the Secretary of State, because it's more an executive than a legislative function.

Ruth Fox: It is, but I think you would expect, and the House of Lords would normally expect, more detail on the face of the Bill about the direction of travel. But, we will have to agree to disagree on that one.

Lord Falconer of Thoroton: Well, no, I don't disagree with that. And I think in relation to that, I think you're right to say more detail and in particular what your principles would be in relation to it, that there should be some commissioning process. And I'll be keen to listen to the debate, but I think precisely what further detail you would expect, we do need to consider, and I'm not averse to that at all.

Ruth Fox: So you'd be open to [00:40:00] amendments to sort of beef up a little bit more of the detail around clause 41.

Lord Falconer of Thoroton: I would, I would.

Ruth Fox: Interesting. Okay.

Mark D'Arcy: Can we talk a little bit about how things may go with the Bill from here on in? Sure. We've got, as we've mentioned, an enormous number of amendments already there to be considered at Committee Stage, which is coming up, starting this Friday.

And four days of Committee debate are set aside already in the House of Lords. Do you anticipate more? Do you anticipate there'll have to be perhaps a longer Report Stage as a consequence of having a longer Committee Stage? When do you think the Bill might actually be ready to bounce back to the Commons?

Lord Falconer of Thoroton: You'll both know the procedure in the Lords is that we debate every amendment, but we debate every amendment in groups. So what we do, take an example, there'll be a lot of issues about who should not be eligible for it. So for example, should people in prison be eligible, should people who've had their liberty deprived under the Court of Protection be eligible?

There'll be a whole range of issues and we would normally put all those in one group. Again, there are a [00:41:00] series of different amendments about what you should do about capacity, which we've debated earlier. Put all of those together. There's a number of amendments, for example, about Wales and they'll all be dealt with in one group.

There's a number of amendments about ordinary residents, because you have to live in England or Wales for 12 months before you do it. And there'll be debates about that. If you had 60 or 70 groups, we'd start at 10 o'clock in the morning on a Friday and we can go on into the afternoon. But that's 20 hours of debate.

Can we deal with that number of groups? Yes, we can. We won't be able to, we may need more time, if people waffle on about nothing and deliberately delay, but the House of Lords is well able to deal with the debates on these issues within the time or maybe a little bit, an expansion of time, that they've got.

And remember, we've got until the end of this parliamentary Session to complete [00:42:00] this and the ping-pong for it to become law. And I think the Government has indicated that the Session will end quote "in the spring". And for the purposes of planning, I am assuming that the Spring means sort of the end of March, beginning of April, which is when I think we'll be thinking about an Easter recess.

We've got four months to deal with Committee, Report and Third Reading, and we can easily do that under normal circumstances. Now I am anxious that some people will want to delay because that's the way they want to stop the Bill. But I do not think that is the view of the House. I think the view of the House is there should be proper scrutiny.

I think every sensible person you talk to in the Lords says there's time for that under normal circumstances. But I mean, a lot of people are saying to me, but aren't you worried about those who will delay? I am, but I don't think that's what the overall feeling in the Lords is.

Mark D'Arcy: Is a more subtle threat to the [00:43:00] Bill perhaps that it emerges from the process so hedged about with safeguards that it's actually too unwieldy for people who want assisted die to actually use.

Lord Falconer of Thoroton: I'm worried about that too. So if the Lords are genuine in their scrutiny, if for example, the safeguards take longer than six months to go through, then you've wrecked the Bill.

I agree with that. And we've got to be careful about that. And indeed, you've got to, at the moment, have a preliminary conversation with the doctor. You've then got to have the co-ordinating doctor say that you satisfy all the requirements, which is essentially it's your voluntary decision, you've got the capacity, you've got six months or less to live. Then you've got to get a second doctor to approve it. Then you've got to get the panel to approve it and then it comes back. And the doctor administering or helping you administer the substance yourself has got to be satisfied that you've still got voluntariness, capacity, et cetera. So there's quite a lot you got to get through at the moment. I would say that's quite a bit.

Ruth Fox: Well, one of the evidence sessions that took place on the Select Committee, they explored that and I think one of the KCs who gave evidence [00:44:00] suggested that you're pretty close up to the six month mark already.

Lord Falconer of Thoroton: It was Nicholas Mostyn who said that.

And I greatly respect Nicholas Mostyn partly 'cause I do a podcast with him. I think that it wouldn't take six months. I think it would be much, much quicker. But I mean, I think the point that Mark and you were both making is a valid point.

Ruth Fox: So take us behind the scenes in terms of the work you're doing with Kim Leadbeater.

I mean, are you thinking about kind of what your red lines are in terms of the concessions that you're willing to make to beef up safeguards, put more clarity on the face of the Bill versus the risk that actually what you'd be agreeing to would just make the whole thing more complicated and take longer.

Lord Falconer of Thoroton: I think that there are a lot of issues which don't affect the process that the person has gone through. So for example, the debate we've been having about coronial and Medical Examiners, I mean, that's a debate which doesn't go to the heart of the issue. There are debates to be had about, for example, the opt out, which again, [00:45:00] doesn't go to the heart of the issue. But in relation to what we're talking about now, the basic red line is it shouldn't become so oppressive for somebody who is terminally ill, that it is effectively unusable. I don't think it's at that point now. I do think there will be people who would like an assisted death as proposed by the Bill who won't get it because of the safeguards, and who would otherwise should have it. But I think one's got to err on the side of safety, but not to the extent that one makes it unworkable.

Mark D'Arcy: Now, you've been round this course before because you've proposed several assisted dying bills in earlier parliaments, but this is the first one that has had a real serious chance of becoming law. So what has this been like for you? Because if you go onto social media, there are an awful lot of people out there portraying you as a kind of legislative Hannibal Lecter.

Lord Falconer of Thoroton: I'm incredibly keen for it to get through. I mean, I've been Hannibal [00:46:00] Lecter as far as I can see in politics all along. And I've always assumed that what happens if you're in politics is everybody thinks you're Hannibal Lecter, because everybody hates politicians. And I've never known a period of popularity. So that's no change there.

But the key point is there's never been an assisted dying bill that has got through all its stages in the Commons. The last time the Commons seriously debated a bill, it fell by a pretty substantial margin at Second Reading, which I think was in the Autumn of 2015, Rob Marris' Bill, and it lost by like 330 to 200 or something like that. This time round at second reading the precise number that voted against it voted in favour of the Bill and it got through. So we're in a completely different landscape from ever before.

Mark D'Arcy: It's been a fascinating process and there's still plenty more events to unfold as your Bill heads towards further debate in the House [00:47:00] of Lords.

Lord Falconer, thanks very much indeed for joining us on Parliament Matters.

Lord Falconer of Thoroton: Thank you for talking about this.

Outro: Parliament Matters is produced by the Hansard Society and supported by the Joseph Rowntree Charitable Trust. For more information, visit hansardsociety.org.uk/pm or find us on social media at Hansard Society.

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