Last week, following a historic vote in Parliament, the Terminally Ill Adults (End of Life) Bill (or the Assisted Dying Bill, as it has come to be known) passed its Second Reading in the House of Commons. By a majority of 55, MPs voted in favour, permitting the Bill to move to the next stage of a lengthy parliamentary process. The Assisted Dying Bill is a Private Members’ Bill (PMB) introduced not by the Government, but by Kim Leadbeater MP, a Labour backbencher. This has sparked significant criticism from politicians and academics, who argue that the PMB process—despite requiring the same legislative steps as a Government Bill—risks circumventing ‘proper’ legislative scrutiny. The Bill has profound moral and social implications and so these concerns are perhaps understandable, but without arguing for or against the Bill’s policy, I disagree with the procedural objections which have been raised against it.
In explaining, I’ll begin by examining the PMB procedure, focusing on key differences from the process for passing Government Bills, before I turn to the procedural objections raised against the Bill specifically. Ultimately, I argue that although concern about legislative scrutiny is welcome, procedural objections to the passage of the Assisted Dying Bill are far from persuasive. In reality, the Assisted Dying Bill will be subject to far more scrutiny than the vast majority of Government Bills, regardless of the use of the Private Memebers’ Bill process.
The legislative process for Private Members’ Bills:
Crucially, a Private Members’ Bill must pass through all the same core legislative stages as a Government Bill, that is: First Reading, Second Reading, Committee Stage, Report Stage, and Third Reading in both the House of Commons and the House of Lords. In fact, in the House of Lords, the form a bill takes—whether a PMB or a Government Bill—is entirely irrelevant, as the procedure is identical for both. The procedural differences between PMBs and Government Bills instead arise exclusively in the House of Commons. As the Hansard Society recently outlined, the key procedural variations in the House of Commons include:
- Allocated time for debate: Thirteen Friday sittings per parliamentary session are allocated for PMB debates in the Commons Chamber, providing an exception to the general rule that ‘Government business shall have precedence at every sitting’.[1]
- Order of precedence: A special order of priority governs the final six of those 13 Friday sittings.
- Debate closure rules: ‘Closure’ motions are sometimes used to conclude debates before 2:30pm during the Second Reading and Report stages.
- No programme/timetabling order: There is no programme order for PMBs, meaning no timetabling of stages after Second Reading.
- Restricted Public Bill Committee capacity: Ordinarily, only one active Public Bill Committee (PBC) can consider PMBs at a time. Forming an additional PBC requires a resolution of the House.
- No evidence submissions: Unlike committees for Government Bills, PMB PBCs have no power to accept oral or written evidence submissions. This would require a resolution of the House.
These procedural variations have been central to critics’ concerns about the adequacy of legislative scrutiny.
Since Kim Leadbetter announced her intention, the Government has adopted a formal position of neutrality over the Assisted Dying Bill. Consequently, the recent vote at Second Reading in the Commons was a free vote. Unlike most Government Bills, the issue of assisted dying was, therefore, treated as a matter of personal conscience, with no party whip applied. This allowed MPs to cast their votes free of the usual political pressures. I argue that, in many respects, permitting a free vote in this way may have actually enhanced legislative scrutiny.
It is perhaps because of these advantages, associated with free votes, that PMBs have been used in the past to introduce radical social change. Notably, landmark reforms such as the legalisation of abortion, the decriminalisation of homosexuality and the abolition of the death penalty were all achieved through PMBs and approved by free votes in Parliament. Consequently, the use of a Private Members’ Bill is a well-established legislative practice, albeit not a convention, for advancing high profile social reform.
Concerns relating to scrutiny of the Terminally Ill Adults (End of Life) Bill:
1) Failure to subject the Bill to full pre-legislative scrutiny
One criticism of the Private Members’ Bill process, and consequently of the progress of the Assisted Dying Bill, is that the scope for pre-legislative scrutiny is far more limited than in relation to Government Bills. Hannah White and Jill Rutter at the Institute for Government recently highlighted concerns relating to this, claiming that ‘legislation on an issue like assisted dying would have benefited enormously from a more thorough preparation phase’. Likewise, Mark Elliott has argued that ‘legislation on a matter as significant and contested as assisted dying’ might be expected to be undertaken following the involvement of the Law Commission or the creation of a Royal Commission. At the very least, he contends, the publication of the Assisted Dying Bill ought to have been accompanied by a full policy impact assessment to better inform parliamentary debate.
Undeniably, when conducted effectively, pre-legislative scrutiny can significantly enhance an Act’s workability and political coherence. The process of pre-legislative scrutiny, when conducted well, allows for meaningful consultation with industry experts, stakeholders, and the broader public during a bill’s policy development stage. Indeed, as I have argued elsewhere, the contributions of pre-legislative select committees are often invaluable, ultimately improving the clarity and efficacy of a bill’s legal framework and political policy. Ideally, every bill, regardless of its form, should be published in draft and subjected to extensive pre-legislative scrutiny. Whilst the critics, therefore, are correct to assert that such scrutiny would likely benefit the Assisted Dying Bill, it is misleading to suggest that this level of preparation is standard practice. In reality, pre-legislative scrutiny is rare; only about 11% of Government Bills underwent this process in the 2021–2022 parliamentary session, with just five draft bills presented to Parliament.
Furthermore, the House of Commons Health and Social Care Committee recently conducted an inquiry into assisted dying/assisted suicide, publishing their report on the matter on 20 February 2024. In the course of their inquiry, the Committee received hundreds of responses from experts and stakeholders and took oral evidence from dozens of witnesses. This report was not only available for MPs to consult prior to the Bill’s Second Reading in the Commons (in the same way a select committee report would be if a bill had been subject to formal pre-legislative scrutiny), but it may prove useful once the Public Bill Committee commences.
The Assisted Dying Bill also has the benefit of relating to an issue which has been the subject of previous PMBs and significant public and parliamentary debate. For example, Lord Falconer’s 2015 Assisted Dying Bill was debated twice at Committee stage, which resulted in dozens of amendments being proposed. The 2015 Bill ultimately failed as it ran out of time to progress beyond Committee stage before the dissolution of Parliament in early 2015. Again, MPs had the benefit of consulting these previous debates, and the resulting amendments, in order to better scrutinise the Leadbeater Bill prior to its Second Reading. While the Assisted Dying Bill does not currently have an accompanying impact assessment, in line with the Government’s Guide to Making Legislation, such an assessment—alongside a legal issues memorandum and a delegated powers memorandum—is likely to be published during the Committee stage. Together, these elements are enough to address some of the concerns about procedural scrutiny surrounding the Bill.
Some have also questioned the manner in which the Assisted Dying Bill was drafted. As the Bill is a Private Members’ Bill, it has not been drafted by the Office of Parliamentary Counsel (OPC) – the specialist government lawyers responsible for helping to prepare and draft all Government Bills. The expertise and experience the OPC can provide, critics argue, has thus been lost. However, the Assisted Dying Bill was reportedly drafted by Dame Elizabeth Gardiner, the recently retired First Parliamentary Counsel (a government’s chief legislative drafter), ensuring significant expertise was brought to the process. Moreover, the Government remains under a ‘duty of care’ to the statute book to ensure that legislation is clear, coherent, and effective. Following the Bill’s passage at Second Reading, this duty obligates the Government to address any drafting errors or inconsistencies during the Committee Stage, where the Office of Parliamentary Council is likely to be involved in remedying any identified drafting errors.
2) Sufficient time for parliamentary debate and adequate scrutiny
Perhaps the most common claim made by critics of the Assisted Dying Bill is that it is being “rushed through” Parliament with unnecessary haste, thereby undermining the opportunity for ‘full’ debate and adequate scrutiny. A PMB, they contend, is given ‘far less parliamentary time than a government bill’. These claims, however, are manifestly untrue.
During the Bill’s Second Reading, MPs debated for the full five hours permitted for Private Members’ Bills at this stage. To provide context, the average time spent debating Government Bills at Second Reading is approximately three hours[2] and many highly complex and politically sensitive bills are debated at Second Reading for less than five hours. To take a recent example, the Elections Act 2022 was only debated for four hours, and therefore, to suggest that the time permitted for the Assisted Dying Bill’s debate is abnormally short is disingenuous, even in the case of a complex and morally contentious bill.
Beyond the duration of the debate itself, some critics accused Kim Leadbeater MP of publishing her draft Bill too late, thereby limiting the time available for MPs to thoroughly review and understand the Bill’s provisions. This delay, they argue, deleteriously affected the quality of the scrutiny the proposals received. Again, it is unfair to make such claims. The 18-day interval between the publication of the Assisted Dying Bill and Second Reading exceeds the recommended minimum, as per the Cabinet Office Guide to Making Legislation and is in line with current practice. In fact, many constitutionally/politically significant bills have recently been debated at Second Reading with far less time between publication and debate. For example, the Illegal Migration Act 2023 and the Strikes (Minimum Service Levels) Act 2023, as they became, were debated just 6 days after their publication at the same stage, whilst the United Kingdom Internal Market Act 2020 was published just five days before debate. Alicia Kearns MP noted this point during the debate: “On arguments around procedure, we all have to be honest with ourselves: this Bill has been read far more vociferously than most Bills that go through this House…We have had sight of this Bill for longer than many others”. Furthermore, the Assisted Dying Bill is relatively simple compared to other bills. Unlike the 59-page Illegal Migration Act, which has 58 clauses, Leadbeater’s bill spans only 14 pages and contains 16 clauses. MPs, therefore, had ample time to digest its content in the 18 days prior to the debate.
Concerns have also been raised about the quality of scrutiny at the Public Bill Committee (PBC) stage. As noted above, because the Bill is a Private Members’ Bill, it is not standard practice for the Committee to hear public evidence, whether written or oral. Such evidence sessions can be particularly valuable, not only for informing the Committee’s line-by-line scrutiny of the Bill but also for ensuring that various interested parties have the opportunity to contribute their perspectives on record. Addressing these concerns, Kim Leadbeater immediately moved a motion at the conclusion of Second Reading for the Public Bill Committee to receive such evidence, which the House approved. In an unprecedented move for a Private Members’ Bill, the Committee will now “have the power to send for persons, papers, and records.” Furthermore, it will benefit from the extensive evidence gathered during the Commons’ Health and Social Care Committee’s inquiry of 2024, potentially streamlining the process by reducing the need for further evidence collection.
Neither should time at the Committee stage prove a significant issue regarding the Assisted Dying Bill. Unlike Government Bills, scrutiny in Public Bill Committees for PMBs is not subject to a pre-set timetable, as the Committee operates independently. This allows members to scrutinise the Bill for as long as they consider necessary, provided the Committee’s report is published before the Bill progresses to the Report stage in the Commons. Similarly, time constraints are unlikely to limit scrutiny at the Report stage. At this stage, a Private Members’ Bill is automatically allocated up to five hours of debate, during which MPs can propose and debate reasoned amendments. This allocation exceeds the average time spent at the Report stage for Government Bills. For instance, the Elections Act 2022—a complex piece of legislation spanning 176 pages and 68 clauses—received only two hours and 20 minutes of debate at its Report stage. Should the five hours prove insufficient for the Assisted Dying Bill, the Government could intervene to grant additional time, as Dan Gover has advocated. Precedents for such interventions exist: landmark PMBs introducing key social reforms in the 1960s, such as those addressing the death penalty, abortion, and homosexuality, were granted extra debate time at Report stage.
3) Scrutiny in the House of Lords
A further procedural criticism of the Bill concerns scrutiny in the House of Lords. As a result of the timetabling of the Private Members’ Bill process, the earliest the Bill could complete its Commons passage is 25 April 2025, leaving only two and half months for Lords scrutiny. If the Bill fails to complete its Lords passage by that date, it will automatically fail as there will be no more PMB Fridays left for the Commons to consider Lords amendments. It is for this reason that Government guidance states that amendments made to a Private Members’ Bill in the Second House are ‘likely to kill the Bill’. This dynamic may disincentivise Peers from proposing amendments for fear that the unelected chamber could be perceived as obstructing the will of the elected Commons. If this were to happen, the Bill’s quality could suffer, as the Lords includes many experts – such as senior judges, healthcare professionals, and disability rights advocates – whose insights could enhance the legislation.
Again, however, there are precedents for the Government providing extra time for the Commons to consider Lords amendments for Private Members’ Bills. Just last year, the Worker Protection (Amendment of Equality Act 2010) Bill was granted an additional sitting Friday in order to consider such amendments. As Dan Gover suggests, the Government should now commit in advance to extending Commons sitting time if necessary, ensuring that this Bill receives thorough scrutiny in the Lords. Such a commitment would allow Peers to propose amendments and draw on their significant expertise, serving to make redundant the fears the current timetable has understandably heightened.
Conclusion
Ultimately, concern for the quality of legislative scrutiny is welcome. As Matthew England and Ruth Fox note, ‘…this PMB has reignited an important debate about how Parliament scrutinises legislation – one we hope will persist throughout this Parliament’. But as I have argued, the various criticisms made of the Assisted Dying Bill’s passage – specifically its ‘rushed’ production and limited scrutiny – are not criticisms uniquely of the production and passage of Private Members’ Bills. In fact, concerns such as these are often more apparent in the handling of Government Bills. Consequently, the argument made by opponents of the Bill that it is particularly poorly scrutinised because it is a Private Memeber’s Bill is ultimately unpersuasive.
In relation to this specific Bill, the Government, having demonstrated its impartiality at the outset of the parliamentary process, should now take responsibility for its timetabling to ensure the highest standards of scrutiny. As I argued earlier, this may include intervening at the Report stage to allocate additional time for debate, as well as when the Bill returns from the Lords to the Commons. Taking these steps would preclude opponents of the Assisted Dying Bill from claiming that it has been ‘rushed’ or subjected to insufficient scrutiny.
Kate Dewsnip.
Kate is a Graduate Teaching Fellow and PhD candidate at the University of Liverpool School of Law and Social Justice. She 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.
[1] House of Commons, Standing Orders – Public Business, 23 May 2024, HC 829, Standing Order No. 14(1).
[2] House of Commons, Standing Orders – Public Business, 23 May 2024, HC 829, Standing Order No. 13(8).