The question of whether to legalise assisted dying has been a recurring legal issue in the UK for decades. From the House of Lords case of R. (Pretty) v DPP in 2001 where Dianne Pretty unsuccessfully claimed that s.2 of the Suicide Act 1961, which criminalises complicity in another person’s suicide, was incompatible with Article 8 of the European Convention on Human Rights, to later cases like R. (Purdy) v DPP in 2009, Nicklinson v Ministry of Justice in 2014 and the Court of Appeal decision in R. (Conway) v Secretary of State for Justice in 2018, various aspects of the issue have been litigated before the courts. Two things are clearly evident from this litigation: 1) the law on assisting someone to end their life was unclear and 2) the courts wanted a democratically elected body to clarify it.
The law has ended up in a deeply unsatisfactory position, with the Crown Prosecution Service issuing guidance following the Purdy case that applies a public interest test to prosecutions for assisting suicide. So while it is still a criminal offence to assist someone in committing suicide, prosecutors will not always bring a case when someone does and will take into account things like compassionate motivations and the will of the deceased. It placed assisted dying in a similar position to abortion in Ireland, where for decades the state proscribed it, but allowed citizens who had the ability and resources to travel to avail of the service elsewhere. The CPS’ position also meant that those who assisted people to die abroad could not be certain that they would not be prosecuted on return, facing a potential 14-year prison sentence.
It seemed that this issue would finally be resolved when a series of improbable events led to a Bill to legalise assisted dying, the Terminally Ill Adults (End of Life) Bill, coming before Parliament. I don’t want to explore the merits or demerits of assisted dying in this blog post, instead I want to look at how the imminent failure to pass this Bill has revealed significant shortcomings in the UK’s constitutional procedures.
The introduction of the Assisted Dying Bill came about completely by chance, with Kim Leadbeater MP happening to win a Private Members’ Bill ballot to choose the subject of a Bill to be debated, and potentially passed, by Parliament. This is, in effect, a lottery to win parliamentary time. While all legislatures should create scope for those outside government to propose legislation, the randomness and arbitrariness of the process in Parliament is problematic. The idea that legislation of such social and moral significance should come about through the actions of a single MP effectively winning the parliamentary lottery and not as part of a wider process of social or constitutional reform is a damning indictment of the manner in which the UK undertakes these processes.
For a long time, Private Members’ Bills have been a method by which MPs gain parliamentary airtime for their pet projects, like this Bill to have uniform positioning of letter boxes on doors: The Letter Boxes (Positioning) Bill. Private Members’ Bills rarely make it very far in Parliament with the Institute for Government stating that ‘Of the more than 2,500 [Private Members’ Bills] introduced between 2010–24, just 110 have received royal assent’. So, that the Terminally Ill Adults (End of Life) Bill passed through a third reading in the House of Commons borders on the miraculous, particularly given its controversial subject. Kim Leadbeater could have been forgiven for thinking that the hard work on the Bill was done at that point, however, the saga was only beginning.
Once the Bill hit the House of Lords, its progress was derailed by a number of factors. First, over 1000 amendments were proposed to the Bill. There is no selection of amendments in the House of Lords, as occurs in the House of Commons, so every amendment that is tabled must be debated, though they can be grouped (see detailed discussion from Matthew England here).
Second, because it is a Private Members’ Bill, under the House of Lords rules the Bill had only a very small window of time for debate. Though arrangements to provide more time can be made, and were made for this Bill, it nonetheless meant that there was limited time in which to debate the proposed amendments. Furthermore, no time limits are placed on speeches on Private Members’ Bills, with Lord Falconer describing debates on the Bill as ‘disproportionately long’.
The huge number of amendments proposed and these limitless speeches prompted allegations that a handful of Peers were engaging in a filibuster to try to stall out the Bill and prevent it passing. The most recent collation of amendments shows the same names cropping up repeatedly. Baroness Finlay’s name shows up 182 times, Lord Sandhurst (111), Baroness Grey-Thompson (111), Baroness Coffey (103), Lords Carlile (96) and Lord Goodman (91). While some of the amendments are supported by multiple Peers, it is clear that a small group is responsible for a huge number of the proposed amendments creating this situation.
Which brings us to the third factor at play, if legislation is not passed within a parliamentary session, it is typically scrapped. There are facilities to carry over bills between sessions, but it is not automatic and while a government may be minded to carry over Bills at an advanced stage which implement manifesto commitments, a Private Members’ Bill is an entirely different matter. The pathways to resurrection for a Private Members’ Bill are much less straightforward, potentially relying on another ballot winner to pick it up during the next session.
The fourth factor is that there is nothing to stop the Lords from doing this. While conventions like the Salisbury-Addison Convention stop the Lords from stalling Government Bills mentioned in an election manifesto, that does not apply to non-manifesto commitments, meaning there is much more scope to resist the passage of a Private Members’ Bill like this. The Parliament Acts can provide a work around when the House of Lords is being intransigent, allowing the Commons to pass legislation despite their opposition, but it is rarely used and not well suited to the current situation. In essence, to use the Parliament Acts, the same Bill (barring very minor changes) must be presented to the House of Lords that was passed by the House of Commons and it seems even the sponsors of the Bill, like Lord Falconer, believe the version that came from the Commons needs some amendment.
This is the type of situation that happens under the UK’s “unique” constitutional arrangements, a constitution paradoxically both too rigid and too flexible. Such huge social and legal change should not be driven by a single MP who literally won a parliamentary lottery. A Private Members’ Bill is an inappropriate vehicle to introduce a measure like this, even if a change to the law is desperately needed and widely supported by the public. Neither, though, should a small number of Peers have the power to constrain the law-making power of the democratically elected representatives in the Commons.
At present, we don’t yet know if a majority in the House of Lords even opposes the Bill. The sheer number of amendments tabled for debate has prevented the House of Lords from having any meaningful vote on it. One can’t help but feel that procedures have been exploited to prevent progress, even if opponents of the Bill deny that allegation.
It should not be possible to use the confluence, or absence, of standing orders, constitutional conventions and other such rules to engineer a filibuster like this. These events are the types of inflection points which have prompted reforms to the House of Lords in the past, as the Parliament Acts themselves attest. The Peers creating this situation should be careful because the Commons has a habit of clipping Lords’ wings when situations like this arise.
As for the fate of the Bill itself, much like questions of life and death, it is in the lap of the gods. At this point it is unclear whether the lottery winner’s luck has finally run out, or the Assisted Dying Bill will be miraculously resurrected.
Stuart Wallace.
Stuart Wallace is an Associate Professor at the University of Leeds where he teaches constitutional law and international human rights law. He is a contributing writer for the Constitution Society.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.