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Mr. Duncan Smith : Will the Minister give way?
Mr. Lammy: If I may I shall make some progress.
Those who support the Bill do so because they want those who lack mental capacity to be at the heart of the decision-making process. The Bill requires that everything done for someone who lacks capacity should be in their interests, and that it must be the best for that individual at that time, taking into account all the relevant factors. Those who support the Bill do so because they want professionals and carers—some 6 million of them—to know what they can do for and to people who lack capacity, and when and how they can do it. The Bill and the code of practice, which has statutory effect, will provide the guidance that we were able to put in draft form, and to which Members and various organisations have contributed.
Throughout the development of this legislation, the Government have listened to the wide range of people affected by it, some of whom I mentioned earlier. They include groups representing people with disabilities, the 39 organisations in the Making Decisions Alliance, professional bodies, the Catholic Church and pro-life organisations. The Government have also consulted Members extensively, and the Bill has developed and improved greatly as a result of such consultation. When the Government listen and act as a result of Members asking us to listen, Members cannot then accuse us of bypassing Parliament.
Mr. Duncan Smith: The Minister says that the Government have listened, but I do not understand why we have reached this stage. What consultation with Opposition Members and his own colleagues has to offer us is two letters at the eleventh hour, indicating that changes will be made in the Lords. That does not suggest that the Government are listening, given that such changes could have been made long before. One letter states:
and the other letter, from Archbishop Smith, says the same. But even knowing that, the Minister moved an amendment to amendment No. 2, which was tabled by one of his own hon. Friends, in order to remove the word "best". Are the Government going to reinsert "best" in the Lords? How is the Minister going to deal with this issue?
Mr. Lammy: I hope that the right hon. Gentleman knows that the situation is not as simple as that. We tabled the amendment to remove the word "best" because we want the "best interests" clause to constitute the objective judgment at the end of the process. As drafted, amendment No. 2 did not achieve that. The new amendment, which the Lord Chancellor discussed today, deals with purpose, motive and best interests at the end of the process, so the two amendments are different.
On the Bland judgment and the 36 subsequent cases, I make no apology for the way in which we have dealt with this complex issue, which has challenged the minds of lawyers throughout the country. Indeed, different lawyers have taken different views about the effect of the amendment.
The Government position is clear: we do not want to see Bland overturned, which is also the position of the Catholic archbishops. We have sought to ensure that we do not bring in euthanasia by omission, while at the same time resisting overturning the Bland judgment. That is why discussions have continued and why, even as I speak, I am receiving submissions on the negotiations. We may not like the means, but we should be pleased with the ends and I hope that the matter will be settled in the other place before it comes back here.
Many hon. Members have made invaluable contributions to the scrutiny of the Bill. The hon. Member for Daventry (Mr. Boswell) has been remarkable in his thoroughness. He is a self-confessed serial amender who relentlessly tabled probing amendments in Committee, which helped us to discuss key aspects of the Bill in greater depth. Throughout the process, he balanced constructive questioning with support for the Bill.
It is as a result of one of the hon. Gentleman's questions that we tabled two amendments to clause 4. We wanted to make it clear that the test of best interests should be objective. Our amendments make it clearer that we must take into account all the factors that a reasonable person would consider relevant—an important clarification that I hope was not entirely lost, at least for the Hansard record, in our earlier debate about life-sustaining treatment. The key point is that we cannot substitute our own judgments: they must be objective with a doctor balancing all the issues before him, particularly when they relate to life-sustaining treatment.
Mr. Drew: So will the Minister give an assurance that when we receive the final outcome of the Burke judgment, it will play a part in respect of the rubric not just of the Bill but of the code of practice?
Mr. Lammy:
My hon. Friend will know that Burke is under appeal now and that important issues are involved in that case concerning positive statements of what one wants and desires. The Government will consider it in due course as the case proceeds.
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The hon. Member for Sutton and Cheam (Mr. Burstow) was also a valued member of the Committee. It was his amendment and a similar one tabled by the hon. Member for Tiverton and Honiton (Mrs. Browning) that led us to introduce an amendment to clause 3, under which the Bill provides that information must be explained to a person in a way that is appropriate to his circumstances. There is no longer any doubt: no one should be labelled incapable merely because insufficient efforts have been made to help him understand and communicate.
On life-sustaining treatment, I have already mentioned that discussions on the issue continued up to the very last moment today, showing how very seriously the Government take people's concerns, particularly relating to the vulnerable, to advance decisions and to the power of attorney. I said earlier that we greatly welcome the amendment tabled by my hon. Friend the Member for Knowsley, North and Sefton, East (Mr. Howarth). We value his commitment to the Bill, to helping vulnerable people and to building consensus around his amendment. We shall take the substance of his amendment forward, as I explained earlier, subject to the adjustments introduced by the Government, just as we have also accepted the spirit of new clauses 1 and 2. We want to build on my hon. Friend's amendment to make it clear that the Bill does not authorise any decision motivated by a desire to bring about a person's death. We have also made it clear that we want to ensure that advance decisions about life-sustaining treatment are recorded in writing and witnessed. We are also exploring with health care professionals whether we can make it a requirement for people to consult their doctor before taking such an advance decision.
Let me make it quite clear that the Bill both clarifies the law and makes it safer. The difficult and sensitive cases will, as now, go to court. Our new court of protection means that cases of persistent vegetative state will still go to court.
Throughout the Bill's passage hon. Members have talked about what might happen when wicked people—be they doctors, attorneys or others—conspire to bring about a person's death without regard to that person's best interests. We have sought to put safeguards into the Bill. None of us can say that such things can never happen again, but the Bill's purpose is to protect vulnerable people as much as possible. I am sure that we have achieved that, and in that regard I refer in particular to clause 58 and the work of the Joint Committee on Human Rights. We have also worked with the Catholic community on amendments dealing with advanced decisions, life-sustaining treatment and the purpose or motive that might lie behind bringing about a person's end.
I hope that I have been able to paint a clear and accurate picture of what the Bill will do. Much information has been spread about it, and I want to reassure the House and the public that it is about protecting the rights and interests of vulnerable people, regardless of the present political environment. People in Britain will benefit from the Bill, and we should be proud of it. It has been coming for 15 years, and I am very pleased to be the Minister opening this Third Reading debate.
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6.42 pm
Mr. Boswell: This Bill raises immensely serious issues. All parties involved in the debate—and Ministers too, largely—have engaged in the effort required to put it into an acceptable state. As the Minister said, the Bill has had a 15-year genesis already. Hon. Members have worked together to achieve the common objective of assisting persons with mental capacity problems. We all recognise the sensitivity of the issue, and have searched for the appropriate safeguards.
The case for the Bill was well expressed on page 27 of the recent report from the Joint Committee on Human Rights. The Committee states:
"Our view on initial consideration is that the Bill should be broadly welcomed from a human rights perspective because it enhances the ability of people who lack capacity to make their own decisions where they can, and makes it more likely that sound decisions will be made on their behalf when they cannot make those decisions for themselves."
That is a strong case for the Bill, but the Committee continues in the same paragraph:
"A number of human rights issues arise, mainly concerning the adequacy of the various safeguards contained in, or envisaged by, the Bill."
That warning is perfectly reasonable. The Bill will help by codifying the existing common law, for example in relation to advance decisions. I was prepared to support the Government in the Lobby tonight on that, although I was not prepared to do so on other matters.
I want to emphasise the safeguards that are required and, for reasons of convenience of reference, I shall follow the schema adopted by the Joint Committee. First, I turn to the matter of the Bournewood gap. My hon. Friend the Member for Tiverton and Honiton (Mrs. Browning) spoke characteristically powerfully about a matter on which the Minister said that he and his colleagues were still consulting. However, we need to deal with the problem promptly, and this Bill is the appropriate vehicle for that.
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