The government has gone the wrong way about legislating on assisted dying
The row over the assisted dying legislation has exposed the shortcomings of private members' bills.
Keir Starmer made much of his promise to Esther Rantzen to allow parliament a speedy vote on assisted dying. But, Jill Rutter and Hannah White argue, by approaching the issue through a private members' bill he may find he has set back her cause
Private members’ bills (PMBs) – like the one Kim Leadbeater is now proposing to legalise assisted dying for a limited category of the terminally ill – have been used for potentially controversial social legislation before. They allow governments to test parliamentary appetite for a change in the law, with the option to help the bill through if it emerges that enough MPs back the principle. This route was used for some of the big social reforms of the 1960s – including abortion and decriminalisation of homosexuality.
More recently, however, governments have opted to introduce government legislation on similar issues, for example, civil partnerships and same sex marriage, while still allowing MPs to vote with their conscience. Kim Leadbeater’s decision to use the rare opportunity of being first in the private members’ bill ballot to bring forward this legislation was understandable, but the government could presumably have dissuaded her from doing so with a commitment to bring forward government legislation later in the parliament. This would have enabled the groundwork to be laid for a more satisfactory debate. Instead the government has found itself responding to unhappy MPs, facing difficult headlines, and dealing with a bill which has lacked proper preparation.
New MPs cannot complain that the bill is coming too early – but legislation needs proper preparation
Some new MPs have complained about being asked to participate in a free vote on a contentious matter of conscience so early in their parliamentary careers. An objection based on the readiness of MPs to fulfil their parliamentary function is – in itself – not a good one. The first months of becoming an MP are a near-vertically steep learning curve for many, but being willing to use one’s personal judgement to decide matters of national importance – without the comforting guidance of the party whips – is a core competence for the role.
The readiness of the legislation is a different matter – because the process of legislating via a private members' bill is quite truncated. It is not that the bill is badly drafted – it was reportedly prepared by an extremely experienced parliamentary drafter. Nor is it because parliamentary scrutiny is limited compared to a government bill – the time available for Commons scrutiny of most government legislation is limited by ‘programming’ and MPs cannot timetable the scrutiny of private members’ legislation in the way the government can (though Nikki da Costa – former legislative affairs director at No.10 – has pointed out that the membership of scrutiny committees is left to the member promoting the bill). But a key problem with using this route to legislate is the lack of pre-legislative stages – and it may be that which ultimately means MPs decide they have no option but to stop the bill proceeding even if they are sympathetic to the principle.
Legislation on an issue like assisted dying would have benefited enormously from a more thorough preparation phase. Governments have used this approach in the past. A notable example was in the 1980s when governments were faced with the need to legislate for changes in the potential for assisted conception. The response of the Thatcher government was to ask a leading philosopher – Dame Mary Warnock – to chair a review of the wide range of ethical issues raised by those advances. The result has been that the UK has a widely accepted regime around human fertilisation and embryology, overseen by an arm’s length body and the issue has been largely removed from politics.
Compare that with the backlash that the Blair government faced when it tried to push wider availability of genetically modified food on an unprepared nation. One of the lessons that the government learned from that fiasco was the importance of public engagement around potentially sensitive changes – and that in turn led to the establishment of the Sciencewise public engagement programme. Twenty years later the UK government has now taken steps to allow genetic engineering, but not yet modification. One reason why the UK was able to gain acceptance to the use of donor mitochondrial DNA to reduce the risk of hereditary diseases was that the ground was well prepared by the Human Fertilisation and Embryology Authority – and the UK became one of the first countries to legislate to allow this – via a government bill.
The government could have laid the groundwork for an informed decision on assisted dying
The government has set up a wide range of policy reviews – but not on assisted dying. But a well-led review, involving many of the people on both sides of the argument, and with a mandate to engage the public, could have addressed the whole range of issues that MPs are now trying to navigate. It could have explored the international experience. It could have looked at the practicalities about how this would be organised and what the implications would be for the NHS. It could have seen if there was anyway of satisfactorily addressing the concerns of people about coercion and the worries of disabled people – and drawn up the best safeguards possible. It could have explored eligibility criteria. Any bill drafted to reflect the recommendations could also be subject to pre-legislative scrutiny.
It is not just assisted dying which would benefit from a more considered approach to legislating on tricky social issues. The fraught and polarised issue of gender recognition and sex-based rights could have been the subject of much more careful advance consideration of how to make life easier for trans people while providing proper and guaranteed protection for women – whether in safe spaces or on the sports field – and avoiding the degeneration of the issue into (as seen with the now overturned Scottish legislation) a poisonous stand-off. Ireland has managed to navigate its way into the 21st century by much greater use of citizens assemblies before making legislation. The UK seems to have forgotten – or never learned – how to do this.
MPs unhappy with the use of a private members' bill for assisted dying should press for reform of backbench legislation
Those who have objected to the Terminally Ill Adults (End of Life) Bill being brought forward as a private members' bill need to channel those objections into impetus to reform parliament’s procedures for considering backbench legislation. These procedures have many deficiencies, and the idea that backbench MPs have a reasonable prospect of getting their own legislation onto the statute books without government support is essentially a fiction perpetuated by MPs and parliamentary staff alike.
Although the parliamentary scrutiny received by a private members’ bill is not different to that received by a government bill – except in terms of the lack of programming – there are numerous other problems. There are three different routes to introduce a bill – an unnecessary degree of complexity; opportunities to bring forward legislation are allocated either by luck (a ballot) or patronage (the whips) rather than cross-party support or preparedness; proceedings take place on a Friday when many MPs prefer to be working in their constituencies; and even widely supported PMBs can be readily ‘talked out’ – filibustered by opponents. Many of the bills that reach the statute books are government ‘handouts’ – effectively an extension of the government’s legislative programme rather than a genuine opportunity for the legislative ideas of backbenchers to be considered.
The Procedure Committee brought forward proposals for reform of private members’ bill procedure in 2013, but no government has since seen fit to allow the House to consider them. Prompted by the attention drawn to PMBs by the Terminally Ill Adults (End of Life) Bill, the Procedure Committee should review and update these proposals and the government should make time for them to be debated.
It may be that Keir Starmer thought the PMB route to allowing the Commons a vote on assisted dying offered him the best of both worlds – making good his promise to Dame Esther Rantzen that he would allow a vote on assisted dying without provoking an internal row and tying up his government in a prolonged debate. But at the moment it looks like a case that hasty legislation may end up meaning no legislation, even if there is quite widespread support for the principle. And his actions have drawn attention to the shortcomings of this method of making law.
- Keywords
- Parliamentary scrutiny
- Political party
- Labour
- Position
- Prime minister
- Administration
- Starmer government
- Public figures
- Keir Starmer
- Publisher
- Institute for Government