Westminster update: Law Society calls for wider consultation on Assisted Dying Bill

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Law Society calls for wider consultation on Assisted Dying Bill

Our view that key provisions of the Terminally Ill Adults (End of Life) Bill need comprehensive consultation before they are allowed to become law was cited during the first committee stage debate on the bill.

Daniel Francis (Labour) highlighted our position that comprehensive consultation should be undertaken to allow resident experts to share views on the appropriate definition of capacity.

Francis noted that, given the large number of evidence submissions from external organisations continuing to roll in to the bill committee, members may well struggle to keep abreast of the various perspectives.

Francis asked the chair how committee members can reasonably be expected to begin line-by-line scrutiny when in the last week they have been presented with more than 400 documents, in addition to new amendments.

The issue of defining capacity was also raised by Sarah Olney (Liberal Democrat), who moved an amendment to replace the concept of capacity based on the Mental Capacity Act (MCA) and replace it with a new definition based on ability.

Olney argued that the MCA definition was not formulated with assisted dying in mind and noted the evidence submitted by the Royal College of Psychiatrists explaining:

"A person with a co-occurring mental disorder that is impacting their wish to end their own life would not necessarily be deemed ineligible; only those whose mental disorder was deemed to impair their capacity to make a decision to end their own life would be excluded.”

Olney expressed that she regrets enormously that there was not more opportunity, before the legislation was drafted, to have those discussions between experts, advisers and others who really know what the MCA means and whether it is sufficient for this purpose.

Simon Opher (Labour) came in to argue that he uses the MCA capacity definition in previous career as a general practitioner and that in the majority of cases whether someone has capacity is clear and indisputable.

For a narrow proportion of people, it is more difficult to decide.

Marie Tidball (Labour) also disagreed with Olney’s amendments, noting that the MCA definition is already widely used by medical practitioners who are comfortable with it and that a new definition would lose significant existing case law.

The minister for care, Stephen Kinnock, representing the government, stated that the government’s position is that the Mental Capacity Act as it stands is a known quantity.

It provides the legal base for a whole range of measures and interventions and the government’s view is that it would be an adequate legal basis to operationalise the bill should it receive Royal Assent.

Sarah Olney’s amendment was pushed to a vote but fell by a margin of 8 votes to 15.

Law Society amendments discussed during Mental Health Bill debate

We have been successful in getting several amendments tabled for committee stage of the Mental Health Bill, all of which have been debated over the past two weeks.

Firstly, our amendment which would prevent the deprivation of liberty safeguards scheme being used to replace detention under section 3 of the Mental Health Act for people with learning difficulties or autism who do not have a mental health condition was tabled by Baroness Browning (Conservative).

Browning said that “the provisions are poorly drafted, overly complex and bear no relationship to the language and ethos of the Mental Capacity Act.”

Many other peers supported this amendment, and the minister strongly agreed with the principle that people with a learning disability and autistic people who would no longer meet the proposed section 3 detention criteria are instead detained under the Mental Capacity Act.

“We do not want this to be a loophole, back door or anything of that nature. We want the effect of the bill to be that, wherever possible, these people are instead supported in the community when they do not have a need for hospital treatment for a psychiatric disorder.”

Another tabled Law Society amendment looked to give the Mental Health First-Tier Tribunal the power to overrule decisions of a nominated person.

There was some debate between peers as to whether the power should lie with the Tribunal, the county court, or the Court of Protection.

The minister, however contended that the county court was the best place, saying the government “believe that it has the expertise, procedural tools and legal framework to handle sensitive disputes involving external parties, such as conflicts of interest or allegations of abuse.”

She said that the government would be working with the county court to ensure they can meet the requirements of the provision.

A third tabled Law Society amendment looked to set up pilot schemes around treatment decisions, though this was not discussed at length.

Finally, we were successful in having an amendment tabled that would keep the safeguard of an automatic referral to the tribunal when a patient’s community treatment order is revoked which results in them being detained in a mental health hospital.

The minister said that the bill improves other safeguards for patients on a CTO, including increased access to tribunals.

MPs argue over tackling rising immigration figures

Monday 10 February saw the second reading of the Border Security, Asylum and Immigration Bill in the commons, its first proper debate.

As to be expected at second reading, the debate gave a high-level examination of the bill and the main focus was the repeal of two previous pieces of immigration legislation passed by the last government.

Outright opposition came largely from Conservative MPs, who said that the bill’s repeal of the Safety of Rwanda Act and parts of the Illegal Migration Act would remove the ‘deterrent’ against people coming to the UK ‘illegally’.

Chris Philp, shadow home secretary, said that the bill:

• removes deterrence
• contains no proposals to limit legal migration
• does not limit the eligibility criteria for settlement and citizenship

He called it a “border surrender bill”.

He also said that by repealing section 23 of the Illegal Migration Act, the government will create a pathway to citizenship for people who entered the country illegally, which he called “unconscionable”.

Other parties however welcomed the reversal of recent immigration legislation, which has always been controversial.

Nonetheless, members from the Liberal Democrats, Greens and even Labour raised concerns around the retention of modern slavery provisions from the Illegal Migration Act.

The Liberal Democrats spokesperson, Lisa Smart, said that the bill fails to provide a legally sound and effective framework and has large gaps around modern slavery.

She said that, without access to the national referral mechanism, survivors of modern slavery are left without the support they need to rebuild their lives.

Tony Vaughan (Labour) said that section 29 of the Illegal Migration Act should be removed, as it blocks modern slavery protections on public order grounds.

He said that the section deprives police of the vital intelligence needed to imprison traffickers, who intimidate victims into silence by convincing them that they will be harmed if they speak out.

“Victims need to trust that their coming forward will lead to protection, not punishment, but under section 29, anyone arriving in a small boat could be prosecuted for entering without a visa, and excluded from trafficking protections as a result”.

MPs debate EU-UK data adequacy concerns

MPs noted their concerns about the Data (Use and Access) Bill’s impact on the UK’s data adequacy status during second reading on Tuesday 11 February.

The Liberal Democrat spokesperson Victoria Collins argued that, by potentially watering down data protections, the UK risks undermining its international credibility and endangering EU-UK data adequacy that is essential for British businesses.

Pete Wishart (SNP) noted his hope that the bill “does not drag us further away from the mainstream when it comes to the European Union.”

Sir John Whittingdale (Conservative) was quick to pick this up to argue that we should be able to diverge now that the UK has left the EU.

Polly Billington (Labour) responded that there is nothing wrong with aligning the UK with EU standards and that this can happen without needing to rejoin the EU.

The minister responded to state that the secretary of state has “been working keenly with the European Commission” and that the EU “will not want to comment on a bill that is still in flight, so the sooner we can get it on to the statute books the better.”

Collins also noted that a central concern of her party is the powers granted to the secretary of state, particularly on recognised legitimate interests.

She highlighted her concern that the bill allows ministerial decisions that bypass meaningful parliamentary scrutiny.

Iqbal Mohamed (independent) mirrored this concern about the executive power to determine recognised legitimate interests, which he explained will allow for more data to be processed with fewer safeguards than is currently permitted. The minister did not respond to these concerns. 

The bill will now begin its committee stage at a date to be announced.

Coming up

The Law Society is working closely with MPs and peers to influence a number of bills before parliament: