Terminally Ill Adults (End of Life) Bill

Written evidence submitted by Professor Emyr Lewis, Emeritus Professor, Aberystwyth University (TIAB107)

Terminally Ill Adults (End of Life) Bill – some considerations from Wales

Thank you for the opportunity to speak to the Committee about some of the Wales-specific aspects of this Bill. Diolch yn fawr.

Senedd legislative competence and the Bill

If it became law the Bill would modify offences relating to suicide. The Bill is therefore outside the legislative competence of Senedd Cymru. [1]

In Scotland, by contrast, the Parliament in Holyrood is considering its own Bill on this topic.

This distinction arises largely from the anomalous position in which Welsh devolution finds itself, namely that of operating within the unified England and Wales legal jurisdiction.

That does not mean however that distinct aspects relating to Wales need not be considered. Indeed it is arguable that the need for scrutiny of the Wales-related aspects is even greater in a private members bill, where there is less likelihood of there having been engagement with the Welsh Government in its preparation than there would have been in the case of a Government bill.

The Bill if enacted is likely to have a considerable impact on the areas of health and social care, both of which are (broadly) within the legislative competence of Senedd Cymru and the executive responsibility of Welsh Ministers.

Devolved matters within the Bill

The Bill touches on matters which are within, or relate to, devolved competence. In particular:

(a) clause 32 empowers the Secretary of State to make regulations to enable the provision of assistance as ‘part of the...health service in Wales.’ By implication this suggests giving powers to the Welsh Ministers to provide the assistance through the NHS in Wales.

(b) clauses 31, 33 and 34 explicitly impose obligations on Welsh Ministers and the Chief Medical Officer for Wales in relation to guidance, notification, monitoring and reporting.

In respect of clause 32, the Hansard Society has expressed concern about the breadth of powers which it confers generally (not only in relation to Wales). That breadth of powers granted to a UK Government minister to make provision of this sort for the NHS in Wales is, I believe, unprecedented since devolution. Furthermore, the powers are broad enough for example to allow the direct provision of NHS services in Wales by the UK Government or a private contractor, and for hypothecating Welsh NHS spend for this purpose. There is no requirement to consult with Welsh Ministers before such regulations are made, let alone obtain their consent. On the face of it, such regulations should, in relation to Wales, be made by Welsh Ministers and subject to approval by the Senedd.

Clauses 31, 33 and 34 on the other hand respect the territorial division of responsibility between the UK and Welsh Governments in respect of the health service, but rather leave matters hanging in the absence of a clear remit for the Welsh Government and the Senedd in the operation of the Act. For instance, clause 35, which provides for a review of the Act is confined to a review by the UK Government and report to Parliament, and does not envisage involvement of the Welsh Government or Senedd, notwithstanding the monitoring and reporting provisions in clause 34.

Both of these areas seem on the face of them to require a Legislative Consent Motion to be brought before Senedd Cymru.

Furthermore, they are both areas about which the views of the Welsh Government should be sought.

The Senedd vote - broader consideration

From a broader constitutional perspective, shortly after this Bill was published, a motion proposed by Julie Morgan MS supporting the broad purpose of the Bill was debated in the Senedd. While it did not (indeed could not) amount to a formal legislative consent motion, it nevertheless envisaged the likelihood that the Senedd would need to consider such a motion at some point. [2]

The motion failed. Among those who voted against were five members of the Welsh Cabinet including the First Minister, her deputy, the Health Minister and the Counsel General. The vote does not of course bind Parliament in any way, whether legally or by convention. Parliament is free to ignore it. Nevertheless I suggest that it deserves to be reflected on by the Committee in considering whether any different or special provision ought to be made in respect of Wales, for instance making other powers of the Secretary of State apart from those mentioned above exercisable in Wales by the Welsh Ministers, or providing for commencement in Wales to be a matter for the Welsh Ministers and the Senedd.

Broader Welsh Polity and legislation

As well as the Senedd and Welsh Government, Wales has certain statutory bodies, some of which have no equivalent in England, whose views on the Bill and its potential implemetation in Wales the Committee should preferably seek. These include the Older People’s Commissioner for Wales and the Future Generations Commissioner. Furthermore, there are Wales-specific laws which deal with matters such as adult safeguarding and mental health which may also be impacted by the Bill if it became law. I am not an expert on these matters, but I suggest that they merit attention at some stage from the Committee.

The Welsh Language

There is a need to accommodate the fact that the Welsh language has official status in Wales. [3] In common with other Acts of Parliament which prescribe forms, or forms of words, operating across the whole of England and Wales, there should be Welsh language versions of the declarations etc set out in the Schedules to the Bill. I suggest that this would be preferable to using delegated powers to make regulations prescribing Welsh forms under section 26 of the Welsh Language Act 1993. Given their great significance, it seems appropriate that the forms should have the force of primary legislation.

Emyr Lewis

28 January 2025