Assisted Dying, Private Members’ Bills and Government Neutrality

Professor Mark Elliott writes:

The Terminally Ill Adults (End of Life) Bill is — quite rightly — attracting a great deal of attention from politicians, commentators, civil society organisations and others. Strong views exist on both sides of the debate about a range of relevant legal matters, including — as recent posts by Philip Murray, Stevie Martin, Rajiv Shah, and Anurag Deb and Lewis Graham demonstrate — the compatibility of the Bill with human rights requirements. Personally, I have significant misgivings about the Bill, including for the reasons set out in a recent letter to the Observer to which I, along with many other legal practitioners and academics, was a signatory. Further cogent concerns, relating, among other things, to the judicial role envisaged by the Bill, have recently been raised by the Shadow Justice Secretary. However, the point of this post is not to argue for or against the Bill (or for or against assisted dying more generally). Rather, its much more modest purpose is to point out some constitutional oddities in the way in which the Bill is being enacted.

Private Members’ Bills

The first and most point is that the Bill is a Private Member’s Bill. This makes the Bill an oddity in the sense that if it becomes law, it will be very unusual: for example, during the 2023–24 parliamentary session, only 2.5 per cent such Bills became law. This does not mean, however, that Private Members’ Bills are somehow improper. Indeed, they can, and do, serve an important function: as the Hansard Society noted in its report Enhancing the Role of Backbench MPs: Proposals for Reform of Private Members’ Bills, Private Members’ Bills can ‘provide an important opportunity for backbench MPs to initiate legislative proposals as well as policy debate, to check the executive, and to respond to issues of public interest and concern’. It is the dominance of the government within Parliament that explains why so much successful legislation is executive-initiated and why so little takes the form of Private Members’ Bills; the relative rarity with which the latter succeed in becoming Acts of Parliament should not be taken as any comment on their constitutional propriety.

Nevertheless, it is, at the same time, the case that legislation on complex and socially contentious matters might be better enacted other than as a Private Member’s Bill, both in terms of the pre-legislative phase and the legislative process itself. Regarding the former, legislation on a matter as significant and contested as assisted dying might, for instance, be expected to be undertaken only following the sort of deliberative process that could be facilitated through the involvement of the Law Commission or the creation of a Royal Commission. The present Bill, in contrast, has benefitted neither from those processes or from anything comparable.

Even legislation that is not significant or technically challenging enough to warrant preparatory work such as a Royal Commission or a Law Commission report usually goes through a number of detailed pre-legislative stages as part of the normal process of preparing a Government Bill for introduction into Parliament. For instance, paragraphs 13.7–10 of the the Cabinet Office’s Guide to Making Legislation (2022) sets out in detail how impact assessments for proposed legislation should be undertaken: a process that involves defining the relevant ‘policy problem’, identifying a range of potential solutions ‘through engaging with interested parties ahead of formal consultation’, going through a formal consultation process, and, ultimately, publishing the full impact assessment ‘when the Government announces its firm position on a single policy option’ and ‘again when the proposal enters Parliament’. As the Guide to Legislation explains, the purpose of this work is to provide ‘a full assessment of economic, social and environmental impacts’ in the interests of ensuring that parliamentarians who consider the Bill are able to do so in a fully informed way. Yet, to date, no impact assessment for the assisted dying Bill has been published.

As far as the legislative process itself is concerned, while it is true that Private Members’ Bills must go through all the same parliamentary stages as other legislation, there are still subtle but important differences. For example, Government Bills are normally published immediately after their ‘first reading’ (i.e., when the Bill is formally introduced and the legislative process started) — and the Government is ‘committed to publishing more of its bills in draft before they are formally introduced to Parliament, and to submitting them to a parliamentary committee for parliamentary pre-legislative scrutiny where possible’ (Guide to Making Legislation, para 21.1). In contrast, Private Members’ Bills need only be published if they secure a second reading. In the end, the Terminally Ill Adults Bill was published on 11 November 2024, ahead of its second reading on 29 November. But this was still several weeks after its first reading (which took place on 16 October), and there was certainly no opportunity for pre-legislative scrutiny of the type mentioned above in the Government’s Guide to Making Legislation. It follows that even though Private Members’ Bills must go through all the usual parliamentary stages, the scope for public debate and scrutiny may be significantly more limited than in relation to Government Bills that are published immediately after their first reading, that might have benefitted from publication in draft and pre-legislative scrutiny, and that will be accompanied, upon publication, by a thorough impact assessment.

Government neutrality

According to the Prime Minister, the Government’s position in relation to the Terminally Ill Adults Bill is one of neutrality. Sir Keir Starmer told journalists on 18 November that ‘the government is neutral, and it’s a free vote, and it’s very important that it remains a free vote, because people feel very strongly about this’. In more formal terms, the Cabinet Secretary, Simon Case, wrote to all Government Ministers on 3 October to say that the Government would ‘remain neutral on the passage of the Bill and on the matter of assisted dying’ and that Ministers should ‘exercise discretion and should not take part in the public debate’. This was on the basis that the matter is one of ‘conscience’ and that the doctrine of collective responsibility — whereby all Ministers are expected to support the Government’s articulated position on a given matter — was being suspended in relation to the Bill and the issue of assisted dying. Two aspects of this strike me as odd.

First, the suspension of collective responsibility is normally undertaken not in order to prevent Ministers from expressing their views but to allow them to do so, even if they disagree with one another. Case’s letter, however, implies that Ministers must not take part in public debate because collective responsibility has been suspended, thus turning on its head the usual implication of such a suspension. Recent examples of collective responsibility’s suspension include the 2016 referendum on EU membership, when Government Ministers were free to argue for or against Brexit, and issues on which there was disagreement between the Conservative and Liberal Democrat partners in the 2010–15 coalition government. In those cases, however, the suspension of collective responsibility enabled Ministers to express their own (differing) views rather than serving to silence Ministers in the service of Government neutrality.

Indeed, as the Hansard Society’s Matthew England has noted, in 1966, when collective responsibility was suspended in relation to abortion and the Government adopted a neutral stance, the then Home Secretary, Roy Jenkins, took it to be a given that that did not preclude him, as a Minister, from expressing his own view in the House of Commons. Against that background, the Cabinet Secretary’s suggestion that ministerial neutrality is required by the suspension of collective responsibility — ‘the Prime Minister has decided to set aside collective responsibility’ and ‘[t]he Government will therefore remain neutral’ (my emphasis) — seems to me unconvincing at best. (It would make more sense if Case had said that that (a) the Government’s policy is one of neutrality; (b) collective responsibility remains; (c) Ministers must therefore be neutral in accordance with the policy.) The same view — that Case’s direction to Ministers does not hold water — appears to have been taken by Ministers, including the Health and Care Secretary, who has made a number of significant interventions in the debate already, and by other Ministers who are now joining the fray.

Second, as Ruth Fox, the Director of the Hansard Society, has pointed out, Government neutrality on a Private Member’s Bill is something that requires formal agreement pursuant to a particular process — at least according to the Government’s own Guide to Making Legislation. It says that this is an ‘exceptional’ step that may be appropriate in relation to legislation on matters such as ‘abortion or euthanasia’ (para 45.23). While the present Bill would not legalise euthanasia, as distinct from assisted suicide, it is clearly within the spirit of the exceptional circumstances contemplated by the Guide. It goes on to say, in para 45.24–25, that:

As private members’ bills can and do reach the statute book, a neutral position should only be recommended if the Government is genuinely prepared to accept the legislation, should that be the will of Parliament. By not opposing a bill the Government is indicating that it is prepared to accept it reaching the statute book with all of the consequences.

A neutral stance must therefore be collectively agreed by ministers in the same way as supporting a private member’s bill, with a handling letter and accompanying documentation: a PBL Committee memorandum, bill print and explanatory notes (where possible), impact assessment, legal issues memorandum and delegated powers memorandum. These must be sent to the PBL Committee and the relevant policy committee of Cabinet at least one month before Second Reading. Policy officials in the department should discuss the proposed stance with the PBL Secretariat as early as possible.

Not all of those documents (as far as I can see) have yet been published. But the expectation that they will be forms part of the background to the controversy that has arisen about the Health Secretary’s decision to ask his Department to assess the cost implications of the Bill. This has attracted significant criticism, including from Harriet Harman. In fact, however, an assessment of those implications is presumably necessary, both in order to inform the impact assessment that the Government — its neutral stance notwithstanding — is expected to undertake as well as the ‘money motion’, which, as Fox has also noted, the Government will need to table if the Bill passes its second reading; as she points out, ‘Only the [Government] can table such a motion and it must therefore know how much money will be required where it’s coming from.’

Comment

Underpinning all of this is a wider point about how the UK’s system of government works. Parliament is, of course, sovereign, and it is right — both in fact and, in my view, as a matter of principle — that Parliament can legislate even if that does not align with the Government’s wishes. Putting the matter another way, Parliament is not simply there to do the Government’s bidding, and no constitutional impropriety arises if Parliament chooses to legislate against the Government’s active wishes or simply in the face of Government agnosticism.

Of course, the nature of our parliamentary system in the UK means that the opportunities for parliamentarians to legislation against the Government’s will are few and far between, the legislation enacted to prevent a no-deal Brexit being a paramount recent exception to the norm that legislation does not generally get enacted against the Government’s will. However, there is no escape from the fact that even if a sovereign Parliament can — and occasionally will be able to — legislate independently of the wishes of the Government of the day, it is, ultimately, the Government that will end up having to make the relevant law work. It is for precisely that reason that, even it maintains neutrality in relation to a Private Member’s Bill, the Government is required to assess the financial and legal implications of the proposed legislation — and, as the Guide to Making Legislation goes on to say (para 45.26), ‘to make drafting changes to ensure the Bill is technically correct … because the Government has a duty of care to the statute book’.

At present, the formal status of the Government’s avowedly neutral position is unclear, not least thanks to the unwillingness of Ministers to adhere to the dubious diktat issued by the Cabinet Secretary following the suspension of collective responsibility. Similar uncertainty arises in relation to the extent to which the Government is prepared to fulfil the constitutional expectations that arise in the event of such neutrality. It is to be hoped, therefore, that the Government will rapidly clarify whether the Cabinet Secretary’s position stands, whether it remains the case that Ministers are required, in effect, to be silent, and, if so, how that squares with the Government’s own expectations, set out in its Guide to Making Legislation, that it will facilitate informed consideration of the Bill by publishing, among other things, an impact assessment. Whatever one’s views on the merits of the assisted dying Bill, a matter of such importance deserves to be dealt with in a manner that is procedurally and constitutionally beyond reproach; legislation as consequential as this surely demands nothing less.