Baroness Grey-Thompson (CB)

My Lords, in moving Amendment 168, I will speak to a number of amendments in this group. The lunchtime break was very useful in being able to reflect on the discussion of the previous group and think about where the two areas may interact. Clause 22 of the Bill introduces a new role of independent advocate for people with “a learning disability, …a mental disorder under section 1 of the Mental Health Act 1983, or … autism”, or anyone who “may experience substantial difficulty in understanding the processes or information” given. My concern with this clause is that it leaves almost all vital detail on independent advocates to regulations set by the Secretary of State. The Bill sponsor’s new clauses on independent advocates were published on 29 January, and the noble and learned Lord says that these are intended to respond to the comments from the Delegated Powers and Regulatory Reform Committee that the obligation to appoint independent advocates should be on the face of the Bill. Although the new clauses from the noble and learned Lord, Lord Falconer, do put more detail in the Bill, I believe that they weaken the provision of independent advocacy for vulnerable people. The new provisions can be optional or waived, and the advocate need not be present. To have an advocate is simply to instruct one. I believe that the new clauses fail to address the key parts of the Delegated Powers and Regulatory Reform Committee feedback. The obligation to appoint independent advocates must be on the face of the Bill and must also be scrutinised by Parliament. The subsection that states that regulations may in particular provide for “obligations on persons performing functions on this Act to ensure the presence of an independent advocate for a qualifying person” is not replicated in the noble and learned Lord’s new clause. The noble and learned Lord’s arguments on 13 March are, I believed, contradicted by his amendments. On 13 March, the noble and learned Lord said that independent advocates were a “rock-bottom protection” for the vulnerable, but I believe that the amendments would shift to a system that is more discretionary and, therefore, weaker. They would also put an awful lot of pressure on disabled or vulnerable people—issues that were so powerfully raised by the noble Baroness, Lady Monckton. My amendment 168 would require that anybody providing a “relevant activity” under the Bill—the new subsection (8) defines relevant activities as including “conducting a preliminary discussion”—must not carry out the relevant activity unless the person seeking assistance has an independent advocate. The amendment would allow a qualifying person to refuse or waive their right to an independent advocate and would permit a preliminary discussion to proceed without one if the patient states that they are content to do so. Clause 22 of the Bill currently mandates that the Secretary of State must set out obligations. I cannot reiterate enough how many concerns I have about that. We have previously debated the crossover between a terminal condition and somebody who is also disabled. For a vulnerable person, it feels like it is just enough to say that a conversation has been had. I do not think that there is enough depth or protection in what we are looking at here, and there are many unanswered questions. We have discussed in other areas who will make the appointment, what they will do, what training they will have, and how they will engage with families. Will it be a person? Could it just be a leaflet? How does the noble and learned Lord envisage that this will work in reality? We have debated online discussions. It may be that the person—the advocate—is just there as an online presence. Relating to the previous group of amendments that we have debated, how will the independent advocate be explained to the individual? This is really important. Will there be flexibility to change the advocate if the person seeking assisted suicide does not get along with them and does not form a connection? I am sure that we will be told that it will be for secondary legislation, but there are important questions such as whether they will be paid. Most positions such as this are subject to minimum wage. How can we also ensure that they are free from bias? I am really concerned about this optionality. If a person does not understand what an independent advocate is, how do they know whether they really need one?