The public must be properly engaged before assisted dying legislation returns

The latest attempt to legislate for assisted dying has failed. MPs voted down Lauren Edwards’ private members’ bill at second reading, by 286 votes to 270. While there will be strong views on all sides of the debate, the vote draws the latest phase of parliament's consideration of assisted dying to a close, though it is unlikely to end the debate permanently. The outcome does however raise a broader question of whether the private members' bill process is a good mechanism for deciding issues of major ethical and social significance – a question we covered at an event earlier in the summer.

This bill highlighted issues with public understanding of private members' bills

Private members bills allow backbench MPs to raise issues that might otherwise be overlooked, put ideas into the public domain and, sometimes, change the law. But they are not an easy route to legislating on complex, contentious issues and they bring in all sorts of procedural complexities and hurdles that are difficult to explain to the public. Why does the order of the ballot determine which bills get priority in timetabling? Why can parliament only debate critical issue on a set number of Fridays in a session – a this number which might increase if the government extends the session? Why is the government’s tacit approval – through drafting support – important and how can one MP conceivably talk the bill out?

In our event, Kim Leadbeater herself mentioned that she was congratulated by people who thought that when MPs voted the bill through at report stage it meant that assisted dying was now legal – despite it not having yet been to the Lords. In the end, Leadbeater’s bill was caught up by hundreds of amendments in the Lords and ultimately failed to complete its passage before the session ended. For the public this sent a confusing message that a bill can fail without parliament reaching a conclusive view on whether the law should change, or what the best safeguards would be, but because it simply ran out of time. The vote on Friday provides a more settled view: MPs do not want to continue considering the legalisation of assisted dying.  

It would be wrong to suggest that the bill was not taken seriously

As our recent event on private members’ bills made clear, Kim Leadbeater and her colleagues undertook extensive research, consultation and scrutiny. The bill committee heard oral evidence and considered hundreds of written submissions. Parliamentary counsel and civil servants also contributed significant expertise. The problem is not that MPs cannot do serious work through a private members’ bill. It is that this process is not well designed to provide the sustained, government-led policy development and public engagement that should be conducted for the consideration of a change of this magnitude. The process creates uncertainty about whether there will be sufficient parliamentary time, whether legislation can complete its passage and whether the government will ultimately take responsibility for making it work.

The public understandably focuses on the principle of assisted dying: whether it should be lawful, under what circumstances and with what safeguards. Yet while parliament grapples with these issues, the parliamentary process can appear to focus on whether a bill has enough time to proceed, whether amendments can be considered and whether it will reach the next stage. Those procedural questions matter, but they can obscure the substantive debate to those outside the process.

Any future attempts must engage public views in the process before deciding to bring back the legislation  

One lesson can be drawn from the government of Jersey's approach, which incorporated a citizens' jury as part of a wider process of consultation on whether to take forward legislation on assisted dying. Participants had the opportunity to consider the arguments, hear evidence and deliberate about the circumstances in which assisted dying might be permitted. The resulting process helped inform the decision to take forward legislation and the development of the government’s bill.

A citizens’ assembly would not determine the government’s policy or remove the responsibility of elected representatives to make the final decision. Its value would be in creating space for informed, balanced and considered public deliberation before a decision is taken to bring legislation forward or before legislation is drafted.

The experience of this bill suggests that, at least for issues of this complexity and sensitivity, private members' bills are not the best mechanism for deciding whether the law should change. If a future government believes that there is a strong enough public appetite to reconsider legalising assisted dying, it should bring forward its own legislation, allowing for greater public engagement and policy development before legislation is brought to parliament.

Assisted dying deserves better than another attempt that may succeed or fail according to the workings of the private members’ bill system. If the government believes the law should change, it must take responsibility for making the case, developing the policy and engaging the public. And if it does not believe the law should change, it should say so clearly. What is no longer satisfactory is to leave the public in a cycle of repeated attempts, procedural failure and unresolved arguments.