Lord Wolfson of Tredegar (Con)

My Lords, I seek the indulgence of the Committee to say a word about my amendment. I am not speaking with my Front-Bench hat on, so to speak, because I understand that this group is going to carry on next Friday. I am in the middle of a trial and cannot attend then. I will speak to my amendment in this group now and will not summarise from the Front Bench but limit my comments to my amendment and the points which arise from that. My Amendment 83B seeks to add “despite any treatment they may be receiving” It ties in with a point made by noble Lord, Lord Pannick, which I will come to in a moment because it is all tied together. The trigger for my amendment is in Clause 2(1), which reads: “For the purposes of this Act, a person is terminally ill if” and then there are two conditions, both of which have to be satisfied. The first is that “the person has an inevitably progressive illness or disease which cannot be reversed by treatment”, let us say—God forbid—one has pancreatic cancer, and it cannot be reversed by treatment. The second condition is that “the person’s death in consequence of that illness or disease can reasonably be expected within six months”. Two points arise out of that. First, there is the point which comes directly from my amendment, which would add “despite any treatment the person may be receiving”. Without this, it is unclear whether the six months is with treatment or without; in other words, you have pancreatic cancer and it cannot be reversed by treatment, so condition (a) is ticked. But when it comes to (b)— “in consequence of that illness or disease”— does it mean that illness or disease itself untreated or does it mean notwithstanding the treatment you have been given? I suspect it is the latter that the noble and learned Lord intends, but it is far from clear. It actually reads more like the former, although I suspect that it is the latter. That is why I tables my amendment, and I respectfully invite the noble and learned Lord to consider it. As I say, I apologise to him, the Minister and everybody if I am not here next week to hear the fulsome response. The other point which arises from the “can reasonably be expected” wording is the question of whether that is the 50% point or not. I am sorry that the noble Lord, Lord Pannick, is not here, but it seems to me as a matter of law that if I have a legitimate expectation in public law, I do not need to have a more than 50% expectation of it happening. There was authority at the highest level in the House of Lords that “legitimate expectation” means reasonable expectation. I am comforted—as always—by nods from the noble and learned Baroness, Lady Butler-Sloss. Therefore, as a matter of law, I can have a reasonable expectation of X, even if I do not think that X is more likely than not. That is an important point which perhaps the Committee will consider going forward. People are reading that as a 50:50 mean or median. However, I can have a reasonable expectation of it raining tomorrow, for example, even if I think there is only a 30% chance of it. That is a reasonable expectation: it is not more likely than not. I do not want to stray too far from my own amendments so I will now sit down, but I am grateful to the Committee for its indulgence.