‘The fate of the assisted dying bill: a quiet end or a painful struggle?’

3 hrs ago 3

Earlier this week, Lord Falconer, the promoter of the Terminally Ill Adults (End of Life) Bill, said that… The post ‘The fate of the assisted dying bill: a quiet end or a painful struggle?’ appeared first on LabourList.

Earlier this week, Lord Falconer, the promoter of the Terminally Ill Adults (End of Life) Bill, said that it was now “very very difficult” to see how the Bill (better known as the Assisted Dying Bill) would pass without a “fundamental change” in the House of Lords. He was responding to the very large number of amendments to the Bill – an unprecedented number for a Bill of this length – proposed by a small bunch of peers opposed to the Bill: amendments for which there is now insufficient time for debate before end of the current Parliamentary session, likely to be in late March or early April, at which point the Bill will fail if it has not been passed by the Lords.

Lord Falconer’s comments attracted considerable comment discussing what one commentator called the “arcane” Parliament Act. As a public lawyer, I rather bridle at that. The Parliament Act is far from “arcane”. On the contrary, it is one of the basic bits of our constitution that anyone interested in British politics should know about. Its 1911 version removed the House of Lords’ right to veto legislation passed by the Commons if the Commons presented the same Bill to the Lords in three successive sessions; and the version now in force, amended by the 1945 Parliament, reduced that to two successive sessions.

The Act is rarely used because it rarely has to be used. The House of Lords knows that it cannot, in the end, block legislation if the Commons insists, and so it very rarely refuses to pass Bills approved by the Commons (it last did so with the Bill abolishing hunting in 2003/4, which was the most recent Bill passed under the Parliament Act provisions).

What is more deserving of the word “arcane” are the provisions that deal with some of the complexities. The basic structure of section 2 of the Parliament Act is that if the same Bill passes the Commons in two successive Parliamentary sessions, then, unless the Lords pass it the second time around, the Speaker certifies that it is the same Bill passed twice and rejected twice, and it proceeds to get Royal Assent and become law.

If you then ask “but what counts as ‘the same Bill’?”, then you are either a lawyer or should be one.

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Section 2 of the Parliament Act tells us, first, that changes in the second Bill that amount only to updating the dates in the first, can be ignored. But there are also provisions dealing with amendments made to the first Bill by the Lords (also not regarded as “changes” if carried over to the second Bill). These provisions also allow the Commons, when passing the second Bill, to suggest amendments the Lords might make. The Commons can also decide, once the Lords have refused to pass the Bill a second time, to back down and decide not to use the Parliament Act, in which case the Bill falls.

These though are wrinkles on the basic rule, which is that for the Parliament Act to work, the versions passed by the Commons in two successive sessions have to be the same, with no amendments – and the Speaker has to certify that that is the case in order for the Parliament Act to be triggered.

Coming back to the Assisted Dying Bill, this all causes something of a headache for the Bill’s supporters. They have two serious problems in using the Parliament Act.

The first problem is that they have to get time in the next session for the Commons to debate and pass the Bill. Here, the difficulty is that this is a Private Members’ Bill, which got time only because Kim Leadbeater MP came top in the lottery that decides which MPs get time for Bills they would like to see passed. Unless the lottery is won by an MP who is so strongly in support of the Bill that they are prepared to use the time that they have for the Bill, then it won’t be introduced as a Private Member’s Bill again. In those circumstances, it will get time only if the Government adopts it as a Government Bill: and it is not clear at all that the Government will do that, given its controversial nature and the fact that many Ministers, including Wes Streeting, the Health and Social Care Secretary whose department’s Bill it would be, don’t support it in principle.

But the second problem is that almost everyone, on both sides of the argument, accepts that the Bill passed by the Commons has a number of problems, and a number of MPs made it clear when they voted to pass the Bill at the end of its journey through the Commons that they did so only because they expected changes to be made in the Lords. But, as noted above, the Parliament Act works only if the Bill sent in the second session to the Lords is (barring small exceptions) the same as the Bill passed by the Commons in the first session. And if the Lords then refuse to pass that Bill, then it is that Bill that becomes law – without the amendments almost everyone thinks are either necessary or at least highly desirable.

So, if an MP who wins the ballot, or the Government, picks up the Bill in the 2026/27 session, both the Commons and the Lords become players in a complex game of bluff.

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The House of Commons could pass the Bill (with suggested amendments) and bet on the Lords caving in, passing the amendments and then the Bill itself. But this then risks the Lords digging in, refusing to pass the Bill, and the Commons having to choose between the Bill becoming law in an unsatisfactory state or it falling.

As for the Lords, if they refuse to pass the Bill, they run the risk that the Commons will insist on passing what is, in anyone’s view, a worse version of the Bill than would have been the case had the Lords just amended the Bill and then passed it. There also could be difficult legal decisions for the Speaker to take – decisions which cannot be challenged in the courts – and which risk drawing him into controversy.

There are other difficult questions for the Lords.

Many of those who support the “blocking” group of peers also argued, at the time of the last Conservative government’s Safety of Rwanda Bill, that it would be quite wrong for the Lords to block important legislation passed by the Commons, even if (like the Assisted Dying Bill) it was not in the winning party’s election manifesto (it is a strong convention, known as the “Salisbury convention” after the Tory peer who proclaimed it, that the Lords will not block legislation promised in the government’s election manifesto). That stance displays impressive constitutional flexibility. But if the Lords block this Bill, what else might they block in future?

There are also questions about the ways in which the House of Lords works: how should the Lords, who operate largely by consensus and “good chaps” understandings of what is acceptable rather than by formal rules, respond to the fact that a small group of peers have used, or abused, that absence of formal rules to block this Bill?

The Assisted Dying Bill is profoundly important, and controversial, in itself. But it may also turn out to be equally important, and controversial, in its constitutional implications.

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