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It seems that the clear balance of the argument lies in favour of the abolition of infanticide rather than its retention. The Law Commission, in its report of November 2006, recommended no change simply, I believe, because the consultees could not agree on a satisfactory alternative. However, the 1938 Act does not reflect modern medical or legal thinking and we should surely try to do better. I beg to move.

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Baroness Scotland of Asthal: I thank the noble Lord, Lord Low, for speaking to the amendment so comprehensively on behalf of the noble Baroness, Lady Murphy. I will take his last point first. He said that we should be able to do better. The truth is that, after extensive examination, it is not possible. I am grateful to the noble Lord for outlining the history of these offences, which go back as far as 1938. It is true that we are asked to grapple with this difficult and delicate issue about once a year. The impact of the legislation as currently framed is such that the Law Commission came to the view that the infanticide offence as currently drafted works and does so effectively.

I know that the noble Baroness, Lady Murphy, has argued as cogently as the noble Lord, Lord Low, has argued today that such cases could be dealt with under diminished responsibility instead. However, the Government are concerned that diminished responsibility would not provide an adequate response to all those cases. In particular, I am thinking of those mothers-often very young, as the noble Lord indicated-who kill their babies in a transient but highly disturbed state of mind after a clandestine birth and, in those very particular circumstances, might struggle to meet the evidential requirements of diminished responsibility.

The Law Commission looked at the issue carefully and concluded that it was right to retain the offence. We concur. The amendments that we have made carefully respond to the judgment in the case of R v Gore. We think that they enable a tightening of the loophole that was created in that case. Regretfully, I do not believe that we can do better than the legislators in 1938. It is a comfort for me to say that we do not intend to change this, although we will continue to look at it as time goes on.

Lord Low of Dalston: Given the response of the Attorney-General, I shall beg leave to withdraw the amendment. I will consider with my noble friend Lady

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Murphy whether we wish to return to the matter on Report. Although we have clearly pointed out the need to do better, we have not yet done better than anyone else in saying what that should be. The correct course, as the noble and learned Baroness suggests, is to keep the matter under review for the time being. I beg leave to withdraw the amendment.

Amendment 171 withdrawn.

Clause 47 agreed.

Clause 48 : Infanticide (Northern Ireland)

Amendment 172 not moved.

Clause 48 agreed.

Clause 49 : Encouraging or assisting suicide (England and Wales)

Amendment 172A not moved.

Clause 49 agreed.

Amendment 173

Moved by Lord Falconer of Thoroton

173: After Clause 49, insert the following new Clause-

"Acts not capable of encouraging or assisting suicide

(1) An act by an individual ("D") is not to be treated as capable of encouraging or assisting the suicide or attempted suicide of another adult ("T") if-

(a) the act is done solely or principally for the purpose of enabling or assisting T to travel to a country or territory in which assisted dying is lawful;

(b) prior to the act, two registered medical practitioners, independent of each other, have certified that they are of the opinion in good faith that T is terminally ill and has the capacity to make the declaration under subsection (2); and

(c) prior to the act, T has made a declaration under subsection (2).

(2) A declaration by T is made under this subsection if the declaration-

(a) is made freely in writing and is signed by T (or is otherwise recorded and authenticated if T is incapable of signing it),

(b) states that T-

(i) has read or been informed of the contents of the certificates under subsection (1)(b), and

(ii) has decided to travel to a country or territory falling within subsection (1)(a) for the purpose of obtaining assistance in dying, and

(c) is witnessed by an independent witness chosen by T.

(3) "Independent witness" means a person who is not-

(a) likely to obtain any benefit from the death of T; or

(b) a close relative or friend of T; or

(c) involved in caring for T.

(4) D is not to be treated as having done an act capable of encouraging or assisting the suicide or attempted suicide of T by virtue of being with T when, in a country or territory falling within subsection (1)(a), T takes steps (including steps taken with the assistance of D) to commit suicide by lawful means."

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Lord Falconer of Thoroton: It is not a crime to travel abroad to be assisted in dying in a country where assisted dying is lawful. Nobody proposes to change that position, either by amendment or suggestion, in this Bill. However, it is thought to be a crime to accompany your loved one to such a country abroad for assisted dying, and the maximum sentence for such a crime is currently 14 years. I say "thought to be" because, although the Court of Appeal in the recent case of Purdy proceeded on the basis that it was a crime, and the counsel representing the Director of Public Prosecutions and that representing Mrs Purdy accepted that it was a crime, in an appeal to the Judicial Committee of this House a point has been raised by the Law Lords to the effect that it might not be a crime. That matter is currently being debated before the Judicial Committee of this House. We have to proceed on the basis that it is a crime, because that is the latest ruling of the higher courts.

We know that in the past seven years, 115 people from this country have gone to Switzerland for an assisted suicide. Some of them have been investigated by the police, while some of those cases have been considered by the Director of Public Prosecutions. In none of the cases has a prosecution been brought under Section 2 of the Suicide Act 1961, despite the fact that the Director of Public Prosecutions has made it clear that he has considered in a number of cases that the evidential requirements of the Act have been satisfied. Nobody wishes to prosecute in those cases, because nobody, in my view correctly, has the stomach to prosecute in cases of compassionate assistance. The attitude of the police and prosecution authorities means that they have, for entirely understandable reasons, created a legal no man's land. The consequence is that there is no clarity.

The lack of clarity has a number of bad effects. The first bad effect is that some people do not allow their loved one to accompany them to a country where assisted dying is lawful, because they fear that after their death, their loved one may be investigated and prosecuted. With respect to them, I mention Mr and Mrs Syd Robbins, who had been married for 34 years. Mrs Dorothy Robbins had motor neurone disease; she travelled to Switzerland for an assisted dying and went alone, refusing to allow her husband, Mr Syd Robbins, to accompany her for fear that he would be prosecuted. There is no suggestion that that case was anything other than one of compassionate assistance. The problem that Mr and Mrs Robbins faced is the same problem that Mrs Purdy has faced, which is why she has brought proceedings, so far unsuccessfully, up to and including the Court of Appeal, to seek some indication that her partner, if he accompanies her to Switzerland for an assisted dying, will not be prosecuted.

There is, in my respectful submission, something wrong with a law that is never enforced, but has the effect of depriving people of the compassionate assistance that I believe every single Member of this House, including those who have written letters to the newspapers about this, would think these people were entitled to. The problem goes further than that. The second problem is that the current law offers no safeguard for those who go for an assisted dying mistakenly believing that they are more ill than they are. Looking at five of the

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cases where people have gone to Switzerland, it has transpired that people in great distress and in great pain had in fact been suffering from such conditions as bad back pain or diabetes and had no underlying terminal condition. Because the law provides no safeguards whatever at the moment, no doctor had ever looked at those cases in the United Kingdom and the consequence was that those people went without any consideration of their medical condition.

The third problem in the law as currently enforced is that there may be cases of abuse-what the noble and learned Lord, Lord Mackay of Clashfern, and those who wrote to the Times referred to as "malicious encouragement to suicide". That is something we would all wish to stop. Currently, the only safeguard in that respect is the fear of prosecution. My amendment would not remove the fear of prosecution in those cases. Instead, it would add further safeguards. I say "my amendment", but the proposal that we make in our amendment is as follows. It should not be a crime if you accompany someone to a country where assisted dying is lawful if the sole purpose of your accompanying them is to assist them in going to the place where assisted dying is lawful. Two medical practitioners must have certified that the person you are accompanying is suffering from a terminal illness and those same two medical practitioners must have certified that the person going has the capacity to make a declaration to the effect that the medical certificates have been read by them or to them and that they freely wish to go for an assisted suicide.

A number of points have been made about these safeguards. In an incredibly well written article in the Daily Telegraph this morning, the noble Lord, Lord McColl, said that doctors do not want to have anything to do with it. No doctor would be forced to have anything whatever to do with this if they did not want to. However, if a defence is to be made that can be relied on, it would require that two doctors independent of each other had certified that someone was terminally ill. That is two doctors more than look at the matter currently.

The second point that has been made in relation to the safeguards proposed is that our amendment contains no definition of terminal illness. I am prepared to leave it to the good sense of two doctors as to whether or not someone is terminally ill. I am more than happy to listen very closely to the views of this House about whether that is the right approach. By terminally ill, I mean something along the lines of the definition contained in the 2006 Palliative Care Bill of the noble Baroness, Lady Finlay, which states that,

The third point is how you deal with the passage of time after the granting of the declaration by the person. I thought very carefully about that before the drafting of the amendment. It is implicit in my amendment and that is why I did not think it was necessary to say that the safeguards-namely, the certificate of the two doctors and the declaration by the person travelling abroad for an assisted suicide-apply to the act of

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going abroad and having an assisted dying. Otherwise, there would of course be no point whatever in the safeguards. I believe that to be implicit, and that the courts would unquestionably construe the amendment in that way.

5.15 pm

The fourth objection to the safeguards is there being no definition of capacity. Remember-one of my safeguards is that the person making the declaration must have the capacity to do so. My reason for not including a definition of capacity is that, as many noble Lords will remember, comparatively recently Parliament passed the Mental Capacity Act, which would without much doubt apply here. For the avoidance of doubt, I draw your Lordships' attention to the fact that Section 62 of the Mental Capacity Act says that the reference to capacity in the Act does not apply to murder, manslaughter or Section 2 of the Suicide Act 1961. Again, I considered that before tabling the amendment and took the view that it was obvious, as a matter of drafting, that that section would not apply to the amendment. I would very much welcome noble Lords' views on that.

The reason that I proposed this amendment, along with my noble friend Lady Jay of Paddington and the noble Lords, Lord Low and Lord Lester of Herne Hill, is that it is absolutely plain that the law is being marginalised. The law is not being applied by the Director of Public Prosecutions because it plainly no longer fits the current situation. The result of the law not being applied is that we have the horror of people going earlier to clinics abroad, without their loved ones being there on the day that they die. Equally, the law provides no protection or safeguard against abusive people, or for those under a mistaken impression of what illness they have. The only current safeguard is the fear of prosecution. That is not removed because the declaration must be made freely.

What are the objections to my amendment? First, it is said that this is a slippery slope; it is the beginning of a change. However, it is the law that people can go to Switzerland; that is the existing position. Is it fair and right to allow greater abuse than would be allowed if my amendment were passed by this House and the other place, and at the same time to have a situation where people go abroad to die without their loved ones? It is not a slippery slope. The amendment deals with the immediate position. Secondly, there are spiritual objections to my amendment. I do not seek to deal with these. They must be made, but in the context of the existing position. The third objection to my amendment is the idea that, before you make a change such as this, there should be a full-blown consultation. Of course, if we were making a change about assisted dying in this country, there should be a consultation. The difficulty is that the law has already been overtaken by events. It is, I believe, absolutely necessary for the law to reflect a situation that did not exist in 1961.

I very much welcome the debate that will now take place on the amendment. I have set out-I hope with clarity-my reasons for proposing the amendment. It is a very important debate and I greatly welcome the contributions that will be made. I beg to move.

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Lord Mackay of Clashfern: I had assumed that the co-signatories to the amendment might wish to speak in support of the noble and learned Lord, Lord Falconer of Thoroton, but if they do not wish to do so I am very content to speak now. As your Lordships may have anticipated, I do not support the amendment that the noble and learned Lord has moved. I declare interests as a member of a variety of Christian organisations and as an honorary fellow of a number of royal medical societies.

In my view, respect for and protection of human life are a defining characteristic of a civilised society. This country has long had protection in place in one form or another against assisted suicide. I quite understand what the noble and learned Lord, Lord Falconer of Thoroton, said about his amendment, but any proposal to alter the current position involves a judgment that a certain kind of life, or a certain span of life, has become unworthy of support from that principle. If you attempt to alter the law on suicide and the law relating to attempted suicide, you immediately bring to the attention of those who suffer from serious disability the point that, if another type of life is thought to be unworthy of protection, or is deemed unnecessary to protect because of the degree of suffering or weakness that may result from it, that judgment can be applied also to disabled people. That is the reason, I believe, why so many disabled people object to any change in the relevant law. That aspect has to be kept in mind when we are considering a matter of this kind.

For the purposes of my remarks I shall assume that the law is as the Court of Appeal accepted that it was. As regards the appeal to the Judicial Committee of this House, the amendment tabled by the noble and learned Lord, Lord Falconer, may result in a case being brought before the new Supreme Court. However, the committee may be able to deal with it so quickly that that will not happen; if not, it may be one of the early cases in the new Supreme Court building. As I say, I am assuming that the law is as it was accepted by the Court of Appeal in England in the recent case. In that situation, the amendment tabled by the noble and learned Lord, Lord Falconer, proposes a procedure that in my view is unworkable. I leave the medical aspects to others, but senior members of the profession have said that the obligation placed on registered medical practitioners by the amendment is unworkable. The amendment refers only to "registered medical practitioners". They are not required to have any particular skill or expertise in relation to assessing capacity.

The main reason why I feel that this amendment is not justified is that the present law, with and on the assumption that what is involved is a criminal offence, permits the circumstances to be looked at by the criminal prosecuting authority. In recent times, there have been a comparatively small number of cases in which the Director of Public Prosecutions and the police felt that there was no obligation to raise a prosecution-I think that the thunder is giving emphasis.

A noble Lord: God is angry.

Lord Mackay of Clashfern: The fact that they felt that there was no obligation to raise a prosecution showed that the circumstances in their view made that

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a proper decision. But that was done after consideration by the director. We all know that there are two stages in prosecution policy: first, the question whether there is evidence sufficient to justify a prosecution; and, secondly, the question whether it is in the public interest that a prosecution should be brought. It was on the second of these questions, at least in some cases, that the decision of the director rested.

That could be a fundamental safeguard against the possibility that vulnerable people might be manipulated to go to Switzerland in order to end their lives. The cases in the books about undue influence show how a person can take a decision that, without the activities and information provided by, in particular, relatives, might not have occurred. I have thought of an example of how this might work. The son of a person suffering from a terminal illness, who had a considerable prospect of continued life, was affianced and decided that he would like to obtain a house. The deposit necessary for the house approximated to the savings that his mother, the terminally ill patient, had in the bank. In order to relieve her symptoms of pain for a time to come, obtaining a drug not authorised on the National Health Service by the National Institute for Clinical Excellence would require a substantial outlay of expense. In bringing these circumstances closely to the mother's attention and the possibility of her going to Switzerland to enable her to end her life there, the son brought the mother to conclude that this might be the right thing to do. In accordance with the procedure in the amendment tabled by the noble and learned Lord, Lord Falconer, and explained to her by her son, she went through with it. In such a case, the present law would allow the Director of Public Prosecutions to consider the conduct of the son in relation to the whole background of the case. A protection is afforded in that way to vulnerable people against exploitation.

There is one aspect that I want to mention in conclusion. When the committee of your Lordships' House that was investigating these matters some time ago was in Oregon, it was told that quite a substantial proportion of the people who made declarations sufficient to get the prescription for bringing their lives to an end did not, in fact, do so, despite having come to a settled conclusion that they wanted to. Quite a high proportion had the prescription given to them and never used it. That means that the person who signs the declaration in the amendment may nevertheless, at a later stage, wish to change his or her mind. The relative going with the individual could-I do not say "would"-have motives that were not altogether altruistic. It might be difficult for the person, in the face of that accompaniment, to change their mind.

The amendment constitutes a change in the law that would deprive vulnerable people, at a vulnerable stage in their lives, of a protection that the law currently affords. The fear of prosecution is quite an important aspect of the prevention of crime in many of our arrangements. The noble and learned Lord, Lord Falconer, suggested that he was proposing new safeguards, but they are of course optional. The present law is staying, so somebody who did not wish to take advantage of the amendment would simply proceed without it. Therefore, the amendment does not produce any more protection than the present system. On the basis that

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the present law is in fact as the Court of Appeal thought that it was, my submission to your Lordships is that the amendment should not be agreed to.

5.30 pm

Lord Lester of Herne Hill: I have put my name to the amendment. The noble and learned Lord, Lord Falconer, has so completely described it that I would like to make just a couple of points and hope that I will be extremely brief in doing so.

I shall reply to the noble and learned Lord, Lord Mackay, with regard to whether the Bill provides safeguards. It is perfectly plain from the first subsection that the only conduct to be deemed not criminal is:

"An act by an individual ... done solely or principally for the purpose of enabling or assisting",


If anything more than that is done, it would not be covered by the amendment, so anything done in bad faith or in the way of improper pressure or coercion would be ruled out by the defence that the amendment provides. That is the only kind of conduct that is to be treated as not,

The safeguard of two registered medical practitioners says that they must be,

the person "is terminally ill"-that is a matter on which two independent doctors should be perfectly capable of certifying-and, as under the Mental Capacity Act,

Again, I see no problem in two independent doctors being able to decide whether someone has that capacity; I shall be corrected by those who are medically qualified, which I am not.

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