Baroness Merron (Lab)

My Lords, I thank all noble Lords for their contributions to this debate on the issue of residency and eligibility criteria. As I have already made clear and will now repeat, I will confine my comments to amendments on which the Government have major legal, technical or operational workability concerns. First, I turn to the amendments which narrow the residence criteria in respect of eligibility for assistance under the Bill. Amendment 11, tabled by the noble Baroness, Lady Finlay, would change the residence criteria for assistance under the Bill from requiring a person to be “ordinarily resident” to “permanently resident”. Unlike “ordinarily resident”, “permanently resident” does not have a set definition in the context of UK immigration law. It is possible that it would be taken as referring only to those who have citizenship or indefinite leave to remain, which is a much narrower scope than the current wording of “ordinarily resident”. Similarly, Amendments 23, 309, 300A and 306A would restrict access to assisted dying support to British citizens or people with indefinite leave to remain. This may result in migrants on long-term work or study visas who have resided in England and Wales for longer than 12 months being denied access to an assisted death, thereby potentially giving rise to indirect discrimination based on race. These amendments may be subject to challenge under Article 14 of the ECHR when read with Article 8, on the basis that this may amount to unjustified discrimination. This differential treatment would require an objective and reasonable justification. In addition, under various international agreements, the UK has an obligation not to discriminate against EU, EEA and Swiss nationals on the basis of nationality, although the agreements do not prevent restrictions on the basis of residency. Since these amendments would prevent individuals from those countries from accessing these services on an equal basis to UK citizens in the same circumstances, they are likely to be contrary to the UK’s international obligations under those agreements. Amendments 11A, 258A, 306B and 449A, tabled by the noble Baroness, Lady Coffey, seek to change the residency requirement from “ordinarily resident” to “domiciled”. These amendments would add complexity and potential uncertainty to the eligibility requirements. “Domiciled” refers to the determination of a person’s permanent home largely for tax purposes, meaning that a person can be domiciled in a place without being resident there. It is not a familiar concept in domestic law outside of taxation, so it is unclear how it would apply in this context. Further elaboration in guidance would be needed to make these amendments workable. It is also unclear what practical impact this change would have when the Bill would still require people to be physically present in England and Wales in respect of the steps under Clauses 8, 10, 11 and 19. I will next turn to Amendment 14, in the name of the noble Lord, Lord Moylan.