The Terminally Ill Adults (End of Life) Bill has attracted considerable controversy, not just because of the subject matter of the bill, but because concern is growing that should the bill pass second reading, that there will be insufficient scrutiny. Dan Gover argues that parliament needs to take measures to ensure that this important subject gets the debate and scrutiny it deserves.

On 29 November, MPs will debate for the first time the Terminally Ill Adults (End of Life) Bill, a proposal to legalise assisted dying in England and Wales. While the policy itself has predictably attracted substantial controversy, this has been accompanied by growing concern among some that the process through which the bill has been introduced will not provide sufficient scrutiny.

Central to these complaints is that the bill is a ‘private member’s bill’ – that is, initiated by an individual MP (typically a backbencher) rather than the government. Concerns appear to fall into two main camps. One focuses on the policy development – with some arguing that much better pre-legislative preparation was needed, and suggestions ministers could initiate their own consultation and bill – while the other centres on the parliamentary processes for scrutinising the legislation.

Some of the procedural objections have been overstated. While some have argued, for instance, that the bill’s publication came too late – less than three weeks before the first key vote – this was nonetheless within the guidance for government legislation. Indeed, this guidance has not always been followed by ministers in recent years, including for highly controversial measures.

The focus of this blogpost is on the bill’s parliamentary scrutiny. Central to many of these concerns is the question of parliamentary time. There are typically only 13 Fridays in the Commons each year for private members’ bills, while the bills are also not subject to fixed schedules. This means that, unlike on government bills, there is no easy way within these procedures to allocate additional time if it is needed for a bill to be more fully considered.

While taking no position on the policy itself, this article makes four suggestions for how parliamentary scrutiny of the bill could be improved, assuming its legislative passage continues. Most of these would only come into play if MPs voted at second reading that they wished to proceed with the bill. Without such steps, there may be a risk that MPs could either approve a bill that has not been fully scrutinised, or else reject it on parliamentary procedural rather than substantive grounds. Neither outcome would reflect well on parliament.

Proposal 1: Commons speech limits

One weakness of the private members’ bill process is that there are typically no formal limits on how long an individual MP can speak. Whereas government bills are usually ‘programmed’ – meaning there is a fixed timetable for a decision to be made – backbench proposals can run indefinitely. This can mean that time is not well spent, for example by incentivising opponents to deliberately run down the clock (which can be overcome through a closure motion).

On a bill of this gravity, and with such external interest, it is important that parliamentary time is seen to be used well and that as wide a range of voices as possible is heard. In practice, it may be that this would not be a problem. In principle the Chair already has the power to impose speech limits under Standing Order Number 47, but they have been reluctant to do so on private members’ business. The last time MPs considered a private member’s bill on assisted dying, in 2015, the Chair recommended an informal speech limit of five minutes – although it was not universally adhered to – and it is likely something similar would be applied this time. If there is any doubt, however, MPs could consider acting on the Procedure Committee’s 2016 recommendation to endorse formal limits.

Proposal 2: Public bill committee evidence

If the bill passes its first vote it would normally then be scrutinised in detail by a public bill committee. While some have expressed concern that this might be perfunctory – as is often the case on non-contentious private members’ bills – there is no reason to expect it in this case. The number of sittings is essentially a matter for the committee itself – which is expected to reflect MPs’ balance of opinion – and there is no upper limit. More substantial or controversial private members’ bills have held multiple sittings (for example on homelessness and an EU referendum).

One way the committee’s scrutiny could be improved, though, is by receiving public evidence. This is common on government bills but does not by default happen on private members’ bills. Evidence sessions are important not only because they can influence MPs’ scrutiny, but also because they enable interested parties to be heard on the public record. This is especially important given the absence of a formal government consultation – though a rigorous select committee inquiry did occur.

Under Commons procedures, any MP can propose at the end of the second reading debate that the committee be allowed to receive evidence. Adding evidence hearings would clearly extend the committee’s deliberations, though this is no bad thing for scrutiny. It would however exacerbate a legislative bottleneck, with other private members’ bills waiting behind this one to begin their own committee stages. This could be addressed by the committee sitting more frequently than usual, closer to what often happens on government legislation.

Proposal 3: Extra time for Commons report stage

Time pressures will be particularly acute at report stage. Report is often considered difficult for private members’ bills, since MPs could table large numbers of amendments that may cause the bill to run out of time. In recent years, the Speaker has usually placed amendments into a single ‘group’, debated together, which could make it feasible for the bill to pass report in one day. Yet the cost of this could arguably be insufficient time for debate and scrutiny.

One solution, called for by some MPs, would be for the bill to be granted additional time at report stage. It is highly likely, though not certain, that this would need to come from the government. While the assisted dying bill is already likely to receive at least as much time at report as most government bills get, this is not an average bill. Had it been proposed by ministers, a bill of this controversy might reasonably be expected to have been granted additional time. Two days would bring it into line with the same-sex marriage legislation from 2013.

Some may object to this, arguing that it would show ministerial favouritism on a conscience issue and thus compromise government neutrality. Yet additional time at report would arise only if MPs had already backed the principle in a free vote, and would be similar to conscience votes on government legislation. It has always been possible for ministers to give private members’ bills extra time where this is desirable, whether in the high-profile social reforms of the 1960s (on the death penalty, abortion and homosexuality), or more recently for a bill on female genital mutilation in 2019.

Proposal 4: Guaranteed time for Lords amendments

A more overlooked challenge concerns scrutiny in the Lords, if the bill makes it that far. The earliest possible date by which the bill could complete its Commons passage is 25 April, leaving up to two and a half months for Lords scrutiny before the final scheduled Commons Friday on 11 July. If the bill has not completed its Lords passage by then, there would by default be no time available for MPs to consider any Lords amendments – since the Commons procedures provide for only 13 Fridays for these bills each session. It is for this reason that government guidance states that amendments to a private member’s bill in its second House are ‘likely to kill the bill’.

In practice, it may well be that ministers would make time for Lords amendments to be considered. But the lack of certainty could undermine scrutiny in the Lords, either forcing peers to consider the bill quickly or else disincentivising them from making changes to it. This would clearly be a problem for Lords scrutiny, particularly since the chamber contains many peers with relevant expertise – including health professionals, disability rights advocates, legal authorities, and others.

Ministers should therefore give a firm commitment, certainly before the bill has left the Commons, that they will provide time to consider any Lords amendments. Once again there is recent precedent for this. Since 2010, there have been two normal private members’ bills with Commons consideration of Lords amendments stages – one sponsored by a backbench Conservative MP in 2019 and the other from a Liberal Democrat in 2023 – both of which required additional Fridays. Indeed, since 2010 almost all long parliamentary sessions – as the current one is expected to be – saw additional sitting Fridays beyond the original 13. Providing this time would therefore be in keeping with recent practice.

About the author

Daniel Gover is Senior Lecturer in British Politics at Queen Mary University of London and co-author of Legislation at Westminster. He is currently researching private members’ bills in the UK parliament.

Featured image: (CC BY-NC-ND 2.0) by UK Parliament