Contribution
My Lords, I am most grateful to the noble Baroness, Lady Smith of Llanfaes, for her excellent tour de force on the constitutional issues facing the Senedd in the face of Westminster, particularly as we move into elections. I will make a few background comments, much more from my own professional angle in Wales.
We must not forget that there is a long history of health and social inequality in areas of Wales, with rurality creating many problems. My colleagues in palliative medicine across palliative care in Wales have described end-of-life care in Wales as being at breaking point, because the demands of the terminally ill Bill risk drawing away funding from a sector that sorely needs it. We have seen bed closures in Wales, which have been quite tragic. There simply do not seem to be the resources to deliver assisted suicide in Wales.
The Welsh Cabinet Secretary for Health and Social Care, Jeremy Miles MS, has admitted that ensuring the availability of Welsh-speaking staff would be challenging, but people find it much more difficult to communicate in a language that is not their first language, and it is much harder to ensure understanding, detect coercion and detect difficulties unless you can communicate in your own language. I know we are coming on to interpreters later, but I remind the Committee that Welsh and English have equal standing in Wales.
It is unfortunate that the amendment in the other place was removed because, actually, the Government’s impact assessment indicates that two in three older people in Wales struggle to make suitable appointments or to communicate with their GP, for many reasons. That is not because of a problem with the GPs; it is a problem of rurality, access, recruitment and resources.
There is also a major concern that the Senedd’s Health and Social Care Committee detected. It warned that the lack of a dedicated voluntary assisted dying commissioner for Wales would risk the postholder, as the Bill stands,
“being less familiar with the operation and impact of the Act in Wales”,
with a further risk of inequity as a result. This goes to the tension between health and justice in terms of the route.
My Amendment 764, which I am delighted that the noble Baroness, Lady Coffey, has co-signed, respects the devolved competence of Wales and would remove a sweeping Henry VIII power that the Delegated Powers and Regulatory Reform Committee, on which I serve, has objected to as “highly inappropriate”. Both Clauses 41 and 42 provide for the regulation of voluntary assisted dying services—health services provided for, or in connection with, assisted dying—in England and Wales respectively. I will now focus on Wales.
The Committee’s 32nd report expressed particular concern that
“the powers can provide for anything that an Act of Parliament can without the scrutiny that an Act of Parliament would receive”.
It went on to discuss some of the things that such a power could be used for that might evade proper parliamentary scrutiny. The follow-up 49th report again expressed
“‘particular concern’ that ‘the powers can provide for anything that an Act of Parliament can without the scrutiny’”
because
“allowing a power to provide for anything that an Act of Parliament can do makes it unknowably broad, even where there are express limitations on its exercise”.
It described this as
“a fundamentally flawed approach to delegated powers”.
The report continued:
“the exercise of delegated powers is subject to significantly less effective scrutiny than a Bill; little if any time is devoted to line-by-line scrutiny, statutory instruments are unamendable, and their rejection is exceptionally rare”—
as your Lordships know. Such wording as we have seen in this clause appears only in two Acts of Parliament: the European Union (Withdrawal) Act 2018 and the European Union (Future Relationship) Act 2020—basically, the Brexit changes.
On the day of the Senedd vote, the noble and learned Lord, Lord Falconer, wrote a letter, as already referred to, which was copied to Members of the Senedd and implied that, without legislative consent from the Senedd, a person in Wales eligible under the Act could legally access an assisted death only through a private provider or by travelling to England. He went on to state that he would seek to remove Clause 42 from the Bill—the whole of the clause.
Additionally, I suggest removing Clause 42(3), which my amendment would do, because the Bill does not state that Welsh Ministers must be consulted if the Secretary of State makes regulations about the provision of voluntary assisted dying services in Wales, nor the limits on the powers of the Secretary of State in relation to Wales. This could override the Sewel convention and impose aspects of such provision on Wales, hence my very short but crucial amendment.