Contribution
I am most grateful to noble Lords for their contributions to this debate on independent advocates. I will limit my comments to those amendments on which the Government have major legal, technical or operational workability concerns.
I turn first to Amendments 168, 300 and 553, tabled by the noble Baroness, Lady Grey-Thompson. Without further consequential changes, Amendment 168 would result in an internal inconsistency with the framework currently set out in the Bill, which provides an independent advocate only for certain qualifying persons.
Similar concerns arise with Amendment 300, which seeks to establish a new system of advocates for disabled people. It is important to note—not just in reference to these amendments, which I heard the noble Baroness acknowledge are not quite as she might wish them to be, but in relation to the debate—that the Equality Act 2010 definition of disability is very broad. For example, it includes those with cancer. As a result, most people who are terminally ill for the purposes of the Bill would fall within that definition. That means that the amendment could apply to the majority of those seeking an assisted death.
Amendment 300 would require the independent advocate to confirm that the person has been offered
“all practicable social, medical, and palliative supports which are financially supported”.
However, there is no provision to ensure that the independent advocate would have access to the information needed to confirm this, which could make the amendment unworkable.
Amendment 553 relates to young adults aged 18 to 25. People in this cohort are legally adults, so the requirement for parental or guardian consent and to have an independent advocate may raise Article 8 ECHR issues relating to private and family life. To be lawful, these requirements would need to be objectively and reasonably justified and proportionate.
My noble and learned friend Lord Falconer, the sponsor, tabled Amendments 548A, 549A and 862A to address workability issues with the current drafting of the Bill by clarifying the regulation-making powers and parliamentary procedures in Clause 22. The amendments set out when a qualifying person must be informed about independent advocate support and the circumstances in which that support must be provided.
Amendment 544A, tabled by the noble Lord, Lord McCrea, would create a conflict with Clause 22(3), which sets out the role of the independent advocate in providing support and advocacy to a qualifying person. The amendment would remove the definition of “qualifying person”, which would result in confusion about who is a qualifying person and the role of an independent advocate appointed to assist a person who is not a qualifying person.
Amendment 553B, tabled by the noble Lord, Lord Weir, would place a duty on the commissioner to offer the support of an “independent disability advocate” to a disabled person as defined under Section 6 of the Equality Act 2010. As mentioned previously, given the breadth of the Equality Act definition, this duty would apply to most people seeking an assisted death. The amendment is unclear about the duties, training and qualifications that would be required of them.
Amendments 191 and 195 to 199, tabled by the noble Lord, Lord Frost, and spoken to by the noble Lord, Lord Gove, and the noble Baroness, Lady Lawlor, would require the Secretary of State to establish a scheme of neutral advisers to whom a person must be directed in the situation where a registered medical practitioner is unwilling or unable to conduct a preliminary discussion. The amendments are broad, ambiguously drafted and could give rise to significant workability issues.
Amendment 196 in particular would require neutral adviser organisations to make a number of very broad declarations. For example, under the amendment, a neutral adviser must declare that they do not and will not employ
“any person who has taken part in the provision of assistance for assisted dying”.
This could result in a potentially unworkable duty, as it would require the adviser to make a declaration about current and future conduct. These broad declarations could therefore be practically unworkable and create resourcing challenges by excluding significant parts of the workforce, if interpreted broadly.