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The Government believe that any change to the law in order to decriminalise assisted dying is a matter of conscience and for Parliament to decide. As such, the Government do not of themselves have a position on the moral and ethical issues thrown up by the amendment. It follows that, on our side, too, this is a free vote, as it will be-and should be-across the Committee. However, taking a neutral position as the Government do on an issue of conscience is not the same as having no view. The Government must be concerned with the fitness for purpose of any legislation proposed. It is with that in mind that I turn to the detail of the amendment.
Everyone knows what my noble and learned friend Lord Falconer is seeking to do in Amendment 173; I do not need to go through that. As the law is commonly understood, an offence under Section 2 of the Suicide Act is committed even where the suicide occurs abroad but only if aiding, abetting, counselling or procuring takes place in this country. However, aiding or abetting abroad of suicide abroad is wholly outside our jurisdiction. So, in our view, proposed new subsection (4) is unnecessary, as indeed my noble and learned friend said in answer to the noble Lord, Lord Elystan-Morgan.
My noble and learned friend has suggested that the current law is not sustainable given that the Crown Prosecution Service has failed to prosecute over 100 cases where people have been given assistance to travel to the Dignitas clinic in Switzerland. However, in its
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Everyone understands the motivation behind this amendment. We have nothing but sympathy with those who are faced with the sort of difficult choices that none of us would ever want to make. However, even the most limited step in this area is an important one-a crossing of a clear line.
Setting aside the wider ethical issue, we have concerns about the proposed clause as drafted. My noble and learned friend dealt with the term "terminally ill" but we still have some concerns about that definition and, indeed, about the definition of "capacity" and who would constitute a close relative or friend.
Moreover, while the debate on assisted suicide as a whole is, rightly, one of conscience, the Committee will want to reflect carefully on a number of important policy questions thrown up by my noble and learned friend's amendment. Can we be sure that legislating to allow assisted suicide in these particular circumstances would not set an awkward precedent? Would we not, in effect, perhaps be creating a situation where there is one law for those who can afford to go abroad for an assisted death and a different one for those who cannot? For these reasons, the Committee will wish to consider whether legislating to take advantage of other countries' laws is a sensible way in which to address this very complex issue.
There is one other suggested undesirable consequence of the amendment. If the amendment were passed, in the case of persons assisting others to travel abroad for suicide, the criminal law would appear to operate in different ways depending on where the suicide occurred. It would remain the case that a person who assisted the suicide of another in England and Wales would still be guilty of an offence. A person who assisted another to travel abroad for a suicide in a third country, such as Canada, where assisted suicide is unlawful, would also be committing an offence. However, a person who assisted another to travel abroad to Switzerland, where assisted suicide is lawful, would not be committing an offence under the terms of the amendment. That would be a rather arbitrary outcome.
There is no doubting the commitment of noble Lords to this issue or the compassion that drives them and others who are similarly committed to changing the law in this area so that terminally ill, if not other, people have the right to seek assistance to die. Nor is there any doubt that there are others who are equally committed to opposing such legislation. Even if one accepts that the law should change, there is no consensus on where a line should be drawn and what safeguards should be in place and for whom.
I end by reminding the Committee that the Government's view is that this Bill is not the appropriate vehicle for what would be a shift in the law on assisted suicide. We are the better for the debate today, but I ask my noble and learned friend to consider withdrawing his amendment. If he wishes to pursue the matter thereafter, I respectfully suggest that he do so through a Private Member's Bill in the next Session. This subject is certainly worthy of at least that. As I have said, if he seeks to test the views of the Committee, these Benches will have a free vote on what is fundamentally a matter of conscience.
Lord Falconer of Thoroton: I am grateful to every Member of the Committee who has participated in this incredibly powerful debate. I go back to where I started-the current position. It is not unlawful to go abroad for assisted dying in a place where assisted dying is lawful. People go abroad to do that. Although huge passions were expressed during the debate, I never detected at any stage that anybody in the Committee wanted to prosecute the well intentioned person who went with their loved one to help them in their assisted dying; I did not get that flavour from anyone's expressions.
I also felt that practically everybody in the Committee was concerned to ensure proper safeguards against two situations-where the person who went for the assisted suicide was not terminally ill and where they were being overpersuaded to go. The current situation is that the DPP has made it clear that he will not seek out these cases to investigate. If the cases come before him, he will ensure that they are properly investigated and, as long as he is satisfied that there is good motivation, he will not prosecute. That is even though on two occasions, as my noble friend Lord Bach said, there was evidence.
That sensible signal that the DPP will not prosecute in those cases, dependent as it is on public interest, has two important impacts. It indicates that he is not prepared to apply the criminal law to its full rigour at the moment, because nobody has the stomach to give effect to the law in those cases-quite correctly. When the law was introduced in 1961, it never had these cases in mind. The DPP has had, in effect, to change the law to make it work properly.
The safeguards in the amendment would have two registered, qualified doctors and an independent witness looking at the matter. The noble Lord, Lord Carlile, and others suggested what a large number of unsatisfactory doctors there were. Of course there are, but no doctors look at the matter at the moment. My amendment would ensure that two did before somebody went abroad. That must be better than the current position and it would help to deal with the situation where people who were not really ill at all went believing that they were. The noble Baroness, Lady Finlay, said that the two doctors would never have picked up the five cases where there was no underlying illness that would justify going. Why not? They probably would have, but I can tell your Lordships one thing-there would be more chance of it being picked up with two doctors than without.
The debate has ranged far and wide and has addressed a range of philosophical issues. I have two points. First, I do not believe that the DPP, in saying that he will not prosecute where good motives are involved, has either undermined the position of disabled people in this country or put them at greater threat. Secondly, I believe that, if one introduced the amendment, it is much more likely that the abusive cases and the cases where there was no underlying illness would be caught. It is a much more effective way of dealing with the issue than relying on prosecutions, which never occur. The DPP has given the clearest indication that he will not prosecute.
Listening to the debate, I have wondered carefully whether I should test the opinion of the Committee. I am sure that I could improve on the safeguards but, having listened carefully in particular to the noble Lord, Lord Carlile, and the noble Baroness, Lady Finlay, about what is alleged to be wrong, I think that ultimately there was not sufficient detail, although I am more than willing to listen before Report. I am minded to test the opinion of the Committee.
The Parliamentary Under-Secretary of State, Department of Health (Lord Darzi of Denham): My Lords, I shall speak to the draft Human Fertilisation and Embryology (Appeals) Regulations, the draft Human Fertilisation and Embryology (Special Exemption) Regulations and the draft Human Fertilisation and Embryology (Consequential Amendments and Transitional and Saving Provisions) Order. I will describe briefly each set of statutory instruments, starting with the appeals regulations.
The Human Fertilisation and Embryology Authority licenses IVF and embryo research centres. The HFEA licensing regime is set out in statute by the Human Fertilisation and Embryology Act 1990, with regulation-making powers to add detail to the licensing system. In 2004, the Government announced a review of the 1990 Act, which resulted, after interesting and valuable debate, in the Human Fertilisation and Embryology Act 2008. The 2008 Act updates and amends the 1990 Act and, as part of this, updates the licensing and appeals regime.
The 2008 Act requires regulations to be made to set out the details of the constitution of an appeals committee and the process by which an appeal will be heard. The appeals regulations will replace existing regulations that deal with the current appeals processes. The draft appeals regulations aim to ensure that the committee is as independent from the authority as it can be, and that a clear, robust appeals process is set out. There are requirements under common law and the European Convention on Human Rights for appeals procedures to be impartial and fair, and I believe that these draft regulations set out such a procedure.
The draft appeals regulations are in four parts. Part 1 sets out the commencement date for the regulations, and definitions of the terms used. Most provisions in the draft appeals regulations will be commenced on 1 October 2009. However, regulations 4 and 6, and the relevant definitions under regulation 2, will be commenced the day after the draft regulations are made. These provisions relate to the constitution of the committee and the appointment of members, and enable the HFEA to appoint and train members of the appeals committee so that the committee is in place on 1 October.
Part 2 of the draft appeals regulations sets out the constitution of the committee. As the appeals process is a legal procedure, the regulations provide that both the chair and deputy chair must be legally qualified. The appeals committee will have seven members and must have a lay majority. A non-lay member-a person with a professional interest-is defined as either a registered medical practitioner, a person concerned
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The committee is prevented from sitting with an even number of members, and voting is by a simple majority. Members are prevented from abstaining to ensure that a tied vote does not arise. This provision was introduced following the consultation process. The draft regulations specify who cannot sit on the committee, including current and former HFEA members and staff, current licence holders and current persons responsible under a licence. This aims to ensure that the committee is as independent as possible. The draft regulations prevent licence holders and "persons responsible" working in a licensed clinic from sitting on the appeals committee, but do not restrict who may be appointed as an adviser to the committee. Therefore, should the committee require advice from persons who are excluded from being members, they may be appointed as advisers. Provision for the committee to appoint advisers is made in Part 3 of the regulations. I am confident that, in enabling the committee to appoint expert advisers, we have the correct balance between the maximum independence and objectivity of the committee and its access to expert advice.
Part 4 sets out the procedure by which an appeal is determined. I will draw attention to a typographical error in the regulations. Regulation 21(5) refers back to paragraph (3) of that regulation. It should refer to paragraph (4). This will be amended in the final version of the regulations. Part 4 sets out the detail of what documentation the committee will require and when it must be provided. A determination may either be by reference to the papers or at an actual hearing. The draft regulations introduce case management meetings, which may be at the request of either party, to allow the chair to make preliminary rulings on the admissibility of evidence and points of law. This will streamline the appeals process by enabling early agreements on such matters to be reached.
Part 4 goes on to provide for witness evidence and sets out the powers held by the committee to summon witness evidence. This part includes the requirements to ensure that the determination is recorded and made available to both parties. The record will include any advice that the committee receives from an adviser, whether given during the deliberations or the hearing.
I now turn to the special exemption regulations. The Human Fertilisation and Embryology Act 1990 prohibits storing gametes and creating, keeping or using a human embryo without a licence from the HFEA. This is a key principle of the 1990 Act and has been retained following the update of the legislation by the Human Fertilisation and Embryology Act 2008. However, there are two exceptions to this principle, which were set out in regulations made in 1991. These regulations will be replaced by the draft Human Fertilisation and Embryology (Special Exemption) Regulations.
These draft regulations do not represent a change in government policy. It has been necessary to re-make these regulations in consequence of the provisions of the 2008 Act, which update the definitions of "gametes" and "embryos" in the 1990 Act and which provide for the regulation of human admixed embryos. It was also necessary to make some minor and technical amendments to the drafting of the regulations.
The draft Human Fertilisation and Embryology (Special Exemption) Regulations set out the cases in which embryos may be examined or kept, and gametes may be stored, without a licence from the HFEA. There are some circumstances where gametes and embryos may be kept for purposes other than for providing fertility treatment or embryo research; for example, during the course of a criminal investigation into alleged breaches of the Human Fertilisation and Embryology Act or the storage of sperm for teaching purposes. The 1991 regulations were made to set out exceptions to the HFEA licensing requirements in these very specific and limited situations. In drafting the 1991 regulations, the Government wanted to ensure that these regulations could not be used to circumvent the stringent controls set out in the 1990 Act. The same applies to these draft regulations.
The first exception relates to the examination and keeping of embryos, and the storing of gametes in the course of the investigation of an offence under the 1990 Act, or in relation to proceedings for such an offence. This exemption applies to gametes or embryos that have been seized by the HFEA or which have been transferred to premises where they are held on the instructions of the authority.
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