These Are Not Exactly Trivial Matters

Ellie Cumbo writes:

As was foretold, the Terminally Ill Adults (End of Life) Bill has been resurrected. Labour MP Lauren Edwards announced in June that she intended to bring it back after it ran out of time in the House of Lords, and it has now been published in virtually the same form that was sent from the Commons over a year ago.

This being perhaps the least surprising thing to have happened in Westminster this summer, it hasn’t attracted much in the way of comment. But life, and assisted death, comes at you fast: there are in fact only seven weeks to go until MPs will vote on whether or not to send it through the legislative process for a second time.

This time, it is a very different decision- and not only because there is a new Prime Minister. The original sponsors of the Bill, Kim Leadbeater MP and Lord Falconer, have made no secret of their intention to wield the Parliament Act 1911 as a stick with which to beat the Lords. The Act, which has never been used on a Private Member’s Bill before, allows a piece of legislation to become law if the Commons votes it through twice in consecutive sessions of Parliament, regardless of what the Lords do.

Crucially, however, it must be the same Bill both times. With the exception of two amendments that were agreed in the Lords, the use of the Parliament Act is conditional on it being “identical”, which is why Edwards has chosen to reintroduce it with no other changes. This is despite the fact that the sponsors had themselves tabled over 70 amendments that they wanted the Lords to make, but which were not reached in the available time.

Their list included stipulating that no child can start to have informal discussions with their doctors about an assisted death before turning 18, ensuring that assisted dying services are actually regulated, and giving the Secretary of State a duty to consider “safety” (a word that doesn’t appear anywhere in the Bill) when bringing in the new services. These are not exactly trivial matters.

Other issues that remain contentious are the fact that the Bill doesn’t actually require doctors to explore the reason why someone wants an assisted death as long as that wish is “clear, settled and informed”, and that doctors would be allowed to raise assisted dying with a patient who had not first raised it themselves, as long as that patient is an adult. There are also multiple ways that a person with an otherwise manageable condition could make themselves eligible under the Bill’s rather woolly “death…can reasonably be expected within six months” definition of terminal illness, most obviously by simply not taking their medication.

The risks here are clear: not only might a sick and vulnerable person feel driven to bring forward their death to avoid being a burden on loved ones and the NHS, but a doctor might even be the one to suggest it.

And perhaps the most unusual and significant feature of the Bill is just how much isn’t in it at all, because it has been left to be filled in later. These are the Bill’s delegated powers, which allow ministers to decide various aspects of assisted dying not on the face of the Bill, but through other means such as regulations, codes of practice and guidance. The tendency for governments to over-use delegated powers has long been criticised by constitutional enthusiasts, including the former Attorney-General, Lord Hermer, who in 2024 observed that this “upsets the proper balance between Parliament and the executive” and “strikes at the rule of law”.

It was inevitable that the assisted dying Bill would have to depend heavily on delegated powers, because it isn’t a Government Bill: ministers and their departments didn’t design it, and so were unable to take these decisions in advance. Even so, it is startling how little discussion there has so far been outside the House of Lords on the sheer scale of them, a whopping 42 in the Bill as reintroduced. That means 42 aspects of the assisted dying regime would remain blank spaces even after it was enshrined in law- and on a vast range of issues, including what training the death doctors will be required to have, exactly how the new services will be arranged and governed within the NHS, and what forms of advertising will and won’t be permissible (including for private, profit-making assisted dying clinics).

This represents an eye-watering transfer of power from Parliament to Government- and most likely the government that wins the next General Election, rather than the current one. Labour MPs should be in no doubt: they are being asked to place their trust not only in the ministers of tomorrow, but very possibly the ministers of another party entirely.

None of this can be addressed in the Bill’s second go-around, or not unless the sponsors give up their Get Past the Lords Free card. What this means is that the question to MPs, and the new government- has fundamentally changed. It is now simply this: is it more important to pass the most watertight legislation possible, or to put the meddling Lords in their place?

It is worth asking how we got to a point where legislation that would have such obviously unbearable consequences if it were to go wrong has become less an exercise in diligent scrutiny, and more a constitutional arms race.

There is no doubt that some of this stems from Labour MPs’ frustration with the Lords, where Labour still has lower numbers than the Tories and where landmark Government Bills like the Employment Rights Bill (now Act) have faced substantial opposition.

But much of the impatience with dissenting voices was present even from the earliest stages. When the Bill was first debated back in November 2024, its champions were prepared to admit of only one objection: you might, they magnanimously accepted, be opposed to it for religious reasons. For everyone else, the manifest good intentions surely meant it would be an easy win. Anyone who threatened to complicate this by voicing practical concerns was easily dealt with: they must, in the words of Esther Rantzen, have “undeclared” religious beliefs.

This will have come as a surprise to many of the organisations who have criticised the details of the Bill, from anti-abuse charities to the Royal College of Psychiatrists. If any of these are in fact covert faith groups, they have certainly been playing the long game.

Some might suggest that it is the supporters of the Bill who have at times seemed evangelical: willing to break almost any precedent or constitutional norm in their way. After all, it is not only the use of the Parliament Act on a Private Member’s Bill that would be unprecedented; it is already wholly extraordinary that a Private Member’s Bill should be the vehicle for such a massive change to the law and to public services in the first place. At 59 clauses, the Bill dwarfs the other examples of “issues of conscience” legislation to which it is often compared- it is more than eight times longer than David Steel’s Abortion Act 1967, and fourteen times longer than the Murder (Abolition of Death Penalty) Act 1965.

There is no doubt that MPs have already been pushed to go well beyond what the Private Member’s Bill process has previously been considered suitable for, and yet they are now asked to do it all again, only without the actual scrutiny this time.

After nearly two years of following this Bill through every debate and every decision, I sincerely hope that they don’t. I hope that the general sense of renewed purpose and confidence that has accompanied the change of at the top of government also leads to a new approach here. This is an area on which a bad Bill will do a degree of harm that cannot be outweighed by good intentions, and even its sponsors know that it is a bad Bill. Its deficiencies aren’t the fault of the Lords, and they don’t have anything to do with the Lord either. Those who would demand that MPs behave like acolytes, ignoring the many dangers just to score a win, should take the opportunity of the long recess to think again.