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The letter that the Archbishop of Cardiff has sent to the Lord Chancellor in reply to his earlier letter will greatly affect the decision of many hon. Members. The situation would have been helped considerably if my hon. Friend the Minister had been able to give us some indication of the position at the start of the debate. If we had known that, it would have saved a lot of problems. Indeed, as my right hon. Friend the Member for Manchester, Gorton (Sir Gerald Kaufman) said to me earlier, it seems rather like the Government have lost a lot of the credit that they could have had on the matter by apparently holding on to the end. We have had to see an acrimonious row among their supporters before reaching a sensible conclusion.
The Government's attitude makes nonsense of some Government amendmentsfor example, the amendment that would remove the word "best" from an amendment dealing with a person's best interests. We have an undertaking that these matters will be dealt with in the Bill, but regrettably that will occur in the other place again, not in this place, before the elected representatives.
so there is no change from that case. The right hon. Member for Chingford and Woodford Green (Mr. Duncan Smith) said that he would have liked to see that change and so would I, but that was part of the arrangements that were made. The undertaking that we have received is an important one.
I therefore welcome the decision. It makes a good Bill a very good Bill. A Bill that would help us to look after and care for people less fortunate than ourselves was asked for by all the non-governmental organisations that care for people with mental illness or mental incapacity. Those requests have now been met. Removing the fear of euthanasia by omission, as the Government have now specifically and directly undertaken to do, and writing that into the Bill is an important step forward and to a large extent overcomes the major prinicipled objection that I and others had to the Bill.
There are other matters to which the Joint Committee on Human Rights, of which I am a member, drew attention in its last report. The Committee wanted advance directives to be in writing. I hope we will get that. The Committee stated that
"the classification of artificial nutrition and hydration ("ANH") as treatment may not be well known to lay people. The requirement that an advance directive specify the particular treatment for which consent is refused in advance should mean in practice that a specific advance refusal of ANH would be required in order to be effective."
The undertaking given by the Minister seems to back the decision of the High Court in the Burke case. One wonders whether the Government are helping the General Medical Council in its appeal against that case. In respect of withdrawal of treatment where there is no advance directive, the court pointed out that the guidance fell short because it seemed to accept that ANH can be withdrawn from patients who are not dying, if they are in a "very serious condition", and that it can be enough to justify withdrawing ANH from a patient who is not dying if it "may cause suffering" or be
Important articles of the European convention on human rights are involvedarticle 2, on the right to life; article 3, on cruel and undignified treatment; and article 8, on dignity and privacy. The criticisms advanced by the Committee seem to have been met by the Government.
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Mr. William Cash (Stone) (Con): The letter to which the hon. Gentleman refers mentions that the Bill does not authorise any decision where the motive is to kill. Will he compare the word "motive" with an alternative, such as "deliberate consequence"? Motive is a difficult matter to deal with. Does he agree that the words "deliberate consequence" might be better?
Mr. McNamara: That is a matter for the parliamentary draftsman. The archbishop may be a distinguished social theologian, but he is not a parliamentary draftsman. I think the archbishop and the Lord Chancellor know what they mean in this matter. The motive must be to end the life. The question has always been whether the withdrawal of treatment is to end the life, and not what is in the best interests of the patient and is not burdensome.
On new clause 4, the failure of my hon. Friend the Member for Knowsley, North and Sefton, East (Mr. Howarth) to define "palliative care" will give lawyers a field day, whereas new clause 2 makes clear what is meant by "palliative care". Having seen the agreement that has been reached between the Government and Archbishop Smith, I will not vote against new clauses 1 and 2, but I will not vote for them because of the good will that I expressed to the Government for the undertakings that they have given.
Mr. Tim Boswell (Daventry) (Con): I shall speak briefly, as I am conscious that the Minister has a good deal of explanation to give to the House. I begin by reminding the House that there will be a free vote on all occasions today for my party, as there is for the Liberal Democrats and others on the Opposition Benches. The nature of the exchanges today has perhaps taught the Government that on issues of conscience it is well worth offering hon. Members a free vote. The Government may find their response and the debate more constructive, and the Government may have had an easier ride if they had done that.
Mr. John Redwood (Wokingham) (Con): Has my hon. Friend been given a copy of the text agreed between the Lord Chancellor and the archbishop? Is this not a farce of a debate if we cannot have the words that the Government might want us to look at when we are arguing about other words, not knowing whether their amendment will be good enough?
My second concern is the unwisdom of trying to force through a measure with inadequate time for debate. We could either oppose the programme motion, thereby wasting further time, or get on with it. With a little more consideration, we might have got on a lot better. If we had had the letter that enshrined an agreement reached by the Lord Chancellor with the archbishop yesterday, which is now expressed in a letter from the archbishop to the Lord Chancellor today, and if the Minister had at least been able to tell the House at the beginning of the debate three hours ago that he intended to speak to amendments along those lines, that would have been extremely useful.
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In response to my right hon. Friend the Member for Wokingham (Mr. Redwood), I must point out that there is no specific text yet. Anyone who has spoken, including the hon. Member for Knowsley, North and Sefton, East (Mr. Howarth), who has gone to great trouble to try and hammer out consensus in the matter, has been hung out to dry by the very recent decisions that have been taken.
Mr. George Howarth: The hon. Gentleman may feel, uncharacteristically, that he has to make the point that he has just made, but if the agreement takes matters forward, I will not feel that I have been hung out to dry. I will feel that we have achieved something.
Mr. Boswell: I entirely share the hon. Gentleman's sentiments. If only we had had the information three hours ago, we could have gone on to other concerning issues such as research and had more time to debate the Bill. However, let us not waste time on that now.
The genesis of the debate lies in what might be termed the legal defencethe argument that the concept of "best interests" already exists in common law, that advance decisions are permitted under common law, that euthanasia is explicitly prohibited by law, which is enshrined again in clause 58, and that euthanasia should not be divided as between acts of commission or omission, both of which are unacceptable under law. That is agreed, but there is, nevertheless, concern about how the law works in practice.
For a modern statement of the position, I refer the House to the judgment reported in The Times law report on 9 December, in which the Court of Appeal considered and upheld a judgment by Mr. Justice Coleridge in relation to a person who lacked capacity. Rather than reading out the text, I shall summarise: it is clear from that judgment, which was upheld, that the withdrawal of non-intrusive hydration or nutrition in the absence of either an unequivocal advance decision, which did not apply in that case, or any conclusion by the court either that the person was in a permanent vegetative state or that the continuation of life would be intolerable would neither be permitted under the present law nor sanctioned by the Bill.
That comforts lawyers, but real world concerns exist. First, past practice has often been uneasy and, frankly, disturbing. Secondlythe hon. Member for Bolton, South-East (Dr. Iddon) spoke eloquently about thisthere is a euthanasiast agenda, which must be watched all the time and is not acceptable to this House.
New clause 1 would introduce a separate test from the treatment provisions in relation to purpose. Personally, I would have preferred it to specify "the purpose" rather than "a purpose". From what I have seen of the text that the Government are considering, the word "motive" may appear rather than "purpose". However, the plain fact is that if one is considering matters of deliberate killing, motive is important as well as delivery, which might occur through the withdrawal of treatment.
New clause 2, which I have signed and find acceptable, would stiffen the requirement on treatment. The hon. Member for Knowsley, North and Sefton, East worked long and hard to produce compromise amendments,
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which would have been helpful if we did not have the full text. Liberal Democrat amendment No. 46 is also acceptable in principle.
The interesting amendments have already been referred to. I give the Government some credit for the objective test of relevant circumstances. I hope that the Minister understands that my amendment to his amendment is designed to put the burden on the decision maker of taking reasonable care to ascertain the circumstances rather than simply saying that they did not know anything about the case and could not therefore have taken the circumstances into account. I hope that the Minister will reflect on that specific point.
We have all piled in with additional safeguards. My safeguard would ensure that any person who signs an advance directive is, as the Joint Committee on Human Rights suggested, clearly apprised of its implications for artificial nutrition and hydration. We await the Minister's response to the letter, which is due by tomorrow and has not yet reached the public. I also hope that he will consider the issue of instructions in writingI cannot see why advanced decisions should not be in writing.
I have compressed my remarks because the House has spoken for itself in its concern about those matters. We would all vote for greater and better safeguards than those so far offered by the Minister. This is not a good way to proceed and we could have saved ourselves a lot of time. However, the hon. Member for Knowsley, North and Sefton, East is right to say that it is better to get on with it now. If we get the matter right at the end of the day, the process will not concern us.
We want further safeguards, which should not operate at the expense of the person without capacity. At the same time, they should not operate at the expense of either doctors or carers, because we do not want to create an unworkably intrusive system. We want to strengthen the Government's resolve and are irritated by the way in which the matter has been handled. The most important thing is to get the matter right for everyone concerned. We look forward to the Minister's response.
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