A Private Members’ Bill on assisted dying is set to have its second reading this month. The government has declared itself neutral on the passage of the bill. David Natzler argues that the issue is too important for the government to risk the possibility of MPs not fully debating and voting on it. He says ministers should therefore ensure that the Commons can come to a decision on second reading, be open about plans for a public consultation, involve Parliamentary Counsel in the drafting process and allow for submission of written evidence to a prospective public bill committee.

Kim Leadbeater, MP for Spen Valley, was drawn first in the ballot for Private Members’ Bills (PMBs), and her bill on assisted dying –  the Terminally Ill Adults (End of Life) Bill – will be brought forward for second reading – the stage at which the House of Commons is asked to approve a bill in principle – on 29 November. The system at Westminster is such that any PMB opposed by a small but determined minority will not generally reach the Statute Book, exemplified recently by Rebecca Harris’ Daylight Saving Bill in 2010-12. The European Union (Referendum) Bill introduced by backbencher James Wharton in 2013 reached the Lords but perished there. The Leadbeater bill will be neither short nor simple, and it will evidently be controversial. If the bill does pass its second reading on 29 November, there will inevitably be demands that the government ensure that the bill does not perish for lack of parliamentary time at its later stages.  

Past experience 

Other comparably controversial PMBs have reached the statute book in living memory, particularly in the late 1960s on abortion, capital punishment, homosexuality and divorce reform. Their individual histories are fascinating and diverse but distinguished by one common factor: the provision of extra time by the Wilson government to the extent that they became PMBs in name only. The government generally favoured the policy being implemented, at first exercised a benevolent neutrality, and then found ‘government’ time for the bills to proceed. But the record of the 1960s does not mean that governments are obliged to find time for all high-profile PMBs which pass second reading. 

What can be done now? 

All that the Terminally Ill Adults (End of Life) Bill has to date in terms of government support are repeated assurances from the Prime Minister that time would be found for a debate and decision on the general issue. That is now more or less certain to happen. If a PMB had not been presented as one of the seven ballot bills guaranteed a full day’s debate, the government might have felt obliged to bring forward a non-binding motion of its own to test the balance of opinion of the Commons, but outside the legislative process: and probably not in this first session of the parliament. It remains unclear if the Prime Minister or the government are committed to helping the bill if it passes second reading. The Cabinet is divided, with the Deputy Prime Minister, the Health Secretary and the Justice Secretary all opposed to the bill. The larger parties seem similarly divided. If the bill does pass second reading, the crunch decision point will come at report stage. But there are four things that can and should be done now. 

Second reading debate and decision 

The first thing the government and opposition can do is to emphasise that the public expects MPs to reach a decision one way or another at second reading. There will be ample time for debate, in practice the same time available to a government bill. Time limits on speeches, while unusual in proceedings on PMBs, can reasonably be anticipated. The bill’s supporters will not want to risk the bill still being undecided when time for debate runs out, so one of them will move a ‘closure’ motion. To pass, this requires both a simple majority and at least 100 MPs voting in favour. If passed, this obliges the Commons to come to a decision one way or another about the bill’s future.  

It would be a sorry day for the reputation of the Commons if there was not a clear decision one way or another on second reading of the bill, as those involved will be only too aware. The parliamentary leadership of all parties must play their part in making sure there is indeed a vote on second reading and that, so far as possible, it represents the balance of views in the House.  

After second reading: consultation or review? 

If the bill passes second reading, the government can choose inaction, reflecting the absence of any consensus within government, the Commons, or the country at large. It can simply let Commons procedures take their course and see how it goes. On 9 October Keir Starmer stated at Prime Minister’s Questions that ‘If the House gives the Bill a Second Reading, it will of course then go to Committee as usual…’. But it is still conceivable that the government could choose to treat the decision as no more than a decision in principle. It could seek withdrawal or suspension of further proceedings on the bill in return for a public consultation on the issue – reflecting the Prime Minister’s remark on 9 October that ‘We do need the discussion more broadly on this important issue’ – and/or some sort of time-limited expert inquiry. This could then be followed by the prospect of a government bill in this or a subsequent session; or resumption of the existing bill, possibly taken over explicitly or in practice by government, with a guarantee that it would not fail to pass during this session solely for lack of time.  

If the government intends to mount a public consultation or set up a review in the event of second reading being agreed, it should be open and say so now. The debate and decision on second reading would then be known by members and the public to be about the issue of assisted dying and not the bill itself.  

The text of the bill 

If the bill passes second reading and proceeds in the normal way for PMBs, and potentially into law, it needs to be properly effective. On 9 October, in response to a question from David Davis at Prime Minister’s Questions, the Keir Starmer said that ‘It is important that we ensure that any change to the law – if there is to be one, is effective’. It is up to the MP in charge of a bill to decide on the full text to be put at second reading. Backbenchers can draw on a very small amount of money to get external drafting assistance, but often rely on external NGOs for help. Thanks to the backbench assisted dying bill recently debated in the Lords, and a bill currently before the Scottish Parliament, there are in this case unusually high-quality versions readily available to draw on. But full quality assurance can only come from the involvement of the government’s expert legislative drafters, Parliamentary Counsel. The early intervention of Parliamentary Counsel, not in drafting a bill but being given an opportunity to comment on a working draft, would mean a saving in later time and effort in correcting errors or obscurities, or dealing with relatively minor issues hitherto overlooked. It is in nobody’s interest that the bill should fail for technical reasons to achieve what it sets out to do.  

Given the significance of the issue, the tenor of the Prime Minister’s pledge, and his recognition that any new law must be effective, the assistance of Parliamentary Counsel should be offered now to conduct a technical examination of a working draft, and this assistance should be openly acknowledged.  

Public Bill Committee  

If a bill is given a second reading, it is normally examined in detail by a public bill committee, specially constituted for the purpose, comprising around 20 members who represent both the balance of parties in the House, and – in the case of a PMB – those for and against the bill. The committee determines for itself when and for how long it sits. Most government bills hear oral evidence for several sessions before setting off on detailed debate on the bill, but PMB committees do not. It has been suggested that the committee on this bill should be empowered to hold oral evidence sessions. While attractive in principle, it would raise serious practical and political difficulties in terms of the advance identification and scheduling of witnesses. It could cause delay in the committee getting on with examining the bill and excite further controversy, to little benefit. But there would be obvious advantage in providing for the submission and publication of written evidence, hopefully not just from organisations and expert bodies but also individuals with lived experience. If all those knew now that there would be such an opportunity, they would be able to prepare memoranda and submit them during the proceedings.  

In order that the public bill committee should be able to draw on the expertise and experience of those outside parliament, the government should make it clear now that, in the event of the bill passing second reading and proceeding to committee stage, it would bring forward the necessary motion to allow for the submission to the public bill committee of written evidence. 

Conclusion 

Ensuring that the House comes to a decision on second reading; being open now about any plans for a public consultation or review if the bill passes second reading; getting the bill as right as possible in advance of second reading; and announcing now any plans to allow for submission of written evidence to a prospective public bill committee –  none of these implies any partiality one way or another by the government on the substance of the Terminally Ill Adults (End of Life) Bill. But all would make the process more effective and more transparent.   

About the author

David Natzler is a former Clerk of the House of Commons whose career in parliament spanned over 40 years.

Featured image: Kim Leadbeater MP (Spen Valley, Labour) (CC BY-NC-ND 2.0) by UK Parliament.