Lord Moylan (Con)

My Lords, I have four amendments in this group, three of which are closely related. They are Amendments 85, 894 and 896, the latter two of which are consequential on Amendment 85. I also have Amendment 100, but I will come back to that towards the end. I am grateful to the noble Baroness, Lady Fox of Buckley, and my noble friend Lord Hamilton of Epsom for lending their names to Amendment 85, and to the noble Lord, Lord Carlile of Berriew, for adding his name to Amendment 894 One of the concerns about the Bill is the possibility that the definition of one of the key qualifications, to have a terminal illness, becomes expanded over time—what I am going to call “creep”. I will not detain the Committee with examples from other jurisdictions, but there are examples where the scope for assisted dying has been made available to people with conditions that would hardly qualify as terminal illness and might well not have qualified as appropriate in the minds of the legislators who first put the legislation together. I think it would give the public some confidence in the Bill if they were to know that the capacity for creep was severely limited. My suggestion for limiting it is that there should be a list of what constitutes terminal illness. I am not suggesting that this list should be in the Bill; I believe it should be issued by the Secretary of State by way of regulation and should be updated periodically in the light of medical advice. I turn now to a couple of questions I have for the noble and learned Lord, Lord Falconer, and I will then deal with some objections that might be raised. My first question concerns his own definition, in Clause 2(1)(a), that “the person has an inevitably progressive illness or disease which cannot be reversed by treatment”. My question to him in the first place is whether he regards “inevitably” and “progressive” as adding anything to the notion of being terminal; in other words, is each a subset of the other? Is the definition getting narrower with the addition of each of those words, or are they in fact otiose? If you left them out, would the scope of the definition be just the same? I would be interested to know his answer, although it does not affect directly what I am now going to say. The question of the list was dealt with in the other place to some extent, and arguments were made which suggested that it would all be very difficult because people did not always die from one illness: sometimes they had two terminal illnesses, or they had complications or comorbidities. Medically, I am sure that is absolutely the case, but I do not think it is relevant to what I am arguing for, because the Bill is clear that you have to pass certain qualifications and thresholds to be considered for assisted dying. One is that you have “an inevitably progressive illness or disease which cannot be reversed by treatment”, but you have to have only one of them in order to qualify. You could have two, but you would still qualify—it is irrelevant. You could have one with several comorbidities, and you would still qualify. It does not matter how an individual might die in the end. What matters is their condition at a particular moment and whether they have “an inevitably progressive illness or disease” at a particular time—so applying the list does not seem very difficult to me. The other objection that might be raised is that the list would be very difficult to put together because there are many illnesses or diseases, but I think this is wrong. If one considers illnesses or diseases as a way of dying, and one excludes such things as falling off a roof or some adventitious accident of that character, the diseases or illnesses on the list are all known. We know, medically, what people die of. Very occasionally, a new illness or disease of a terminal character arrives. AIDS was an example in the 1980s and 1990s. It completely shocked us, partly because it is such a rare thing for a new terminal illness or disease to arrive. Of course, my amendment would allow for the Secretary of State to adjust the list if there were such an eventuality in the future, heaven forfend. We do know what they are, and we can put them together. The Secretary of State can make a list, it will be subject to scrutiny—because, as I think the noble and learned Lord will confirm, all regulations made under the Bill have to be made by affirmative statutory instrument—and people will be able to comment. I think that would give them great assurance that creep was not going to be a feature of this. I would be grateful to hear the noble and learned Lord’s response to that proposal. I come briefly now to my Amendment 100 in this group, which is quite different. This is genuinely probing because, when I read the Bill and got to Clause 2(4), I found a sentence that began: “Nothing in this subsection results”. It was strange, typographically, because it is not a new paragraph—there is not a paragraph break—but nor does it run on directly as a sentence. It has obviously been botched in at some point, probably in the other place. Anyway, these things happen. I read it, and then I read it again, and I read it over and over again. At the end of it, I still could not work out what the sentence actually means. Even if I could construe it in such a way that it did mean something, I would not know what it meant in the context of Clause 2. This is a genuine probing opportunity for clarity from the noble and learned Lord as to what import he thinks this sentence has in the clause. It would certainly please me, and I think many other noble Lords, if we understood that and whether, in fact, it should stand or be swept away. My proposal to delete it at this stage is, as I say, entirely probing, in order to hear what the noble and learned Lord has to say.