During the pandemic, everyone had a crash course in constitutional theory, learning what was law and what was merely guidance when it came to what they could and could not do inside and outside their homes. In similar vein, people are now having a crash course in what Private Members’ Bills are, thanks to the introduction of Kim Leadbeater MP’s Terminally Ill Adults (End of Life) Bill. Social media is now full of extensive discussions about precisely what such Bills are, what level of scrutiny they give rise to, what prospects there are for amending them, and what the role of the House of Lords is in relation to such Bills. It can be somewhat bewildering, but some might find this from the Institute for Government quite helpful.
It is striking, in this context, that the human rights group Liberty, which supports a change in assisted dying laws in principle, is today (22 November) reported as making clear its concerns as to the “principles first, details later” approach which appears to be an inevitable outcome of the Private Member’s Bill process. As the Independent reports, Akiko Hart, the Director of Liberty, identifies that: “What’s really important is to look not just at who might benefit from assisted dying, but at who this Bill might harm… Ultimately, the safeguards in this Bill are just not robust enough, and leave too many details to be decided later, particularly at a time when there is already great inequality in our healthcare system. We know that the impact of these decisions often falls sharpest on disabled people and communities of colour, who are already less likely to receive good quality of care.” She considers that there are “too many details” which “have not gone through a process of scrutiny, and as a result are simply not precise enough,” leading to the danger of the Bill “evolving into something it was never intended to be”, warning of risks that “some people in marginalised communities could feel pressured into an assisted death.”
Many who consider themselves progressive, and, as such, naturally tend to support the Assisted Dying Bill as self-evidently progressive, might have cause to pause in light of Liberty’s observations.
It is, in this context, also perhaps worth highlighting the coincidence that, 4 days before the Second Reading of the Leadbeater Bill in the House of Commons, the Second Reading of the Mental Health Bill will be taking place in the House of Lords. There are two reasons to highlight this coincidence.
The first is that many might feel it important that Parliament is having to consider both the State’s duty to save life in a crisis, and a proposal that there should be a duty on the State to assist in the ending of life. In this regard, many might find of relevance the observations of Louis Appleby, who chairs the National Suicide Prevention Strategy Advisory Group, on how these two policies intersect.
The second reason to highlight the coincidence is to note the process by which the Mental Health Bill has come to be. There was, first, an independent review, chaired by Sir Simon Wessely (and to which, in the spirit of full disclosure, I was the legal adviser), which lasted over a year. The previous Government then put draft legislation before Parliament, which was scrutinised by a joint Parliamentary Committee. The Bill now before Parliament comes with (amongst other things) 145 pages of impact assessment, and a human rights memorandum.
Kim Leadbeater MP’s Bill, published on 11 November 2024, did not undergo any pre-legislative scrutiny, nor does it have an impact assessment. This is not a criticism; it is simply a function of how the Bill came to be. It can also be contrasted, not just with the Mental Health Bill, but with the position in Jersey. Jersey is also considering assisted dying, in a process which has lasted since 2021, led by the Government there, involving a professional leads working group, an external ethics review, and 245 pages of policy proposals. One of the 12 chapters of those proposals specifically addresses resource and financial implications, risks and next steps. It includes 9 pages of risks and potential mitigations; the Government of Jersey considers that it will take 12-18 months to draft the legislation.
So we have two Bills, Kim Leadbeater’s Bill (about which I have sought to ask a series of neutral questions), and the Mental Health Bill, together with (for contrast) the approach in Jersey (for those wanting to see the approach elsewhere around the United Kingdom and its nearby Crown Dependencies, see here).
So why is this post entitled “a story of three Bills”?
That is because, on 21 November, Edward Leigh MP introduced his Private Member’s Terminally Ill (Relief of Pain) Bill under the Ten Minute Rule. I understand that the Second Reading will be on 6 December. The Bill has not yet been published, but its long title is:
A Bill to require the Secretary of State to issue guidance about the application of the criminal law in respect of the administration of pain relief by healthcare professionals to people who are terminally ill; and for connected purposes.
Edward Leigh has made no secret of his opposition to the Bill introduced by Kim Leadbeater, and some might suggest that his proposal is simply an attempt to derail that latter Bill. But it is perhaps important to note how widespread misunderstandings are about what doctors may do under the current law to seek to alleviate pain. It was, for instance, striking that in the polling conducted by the Complex Life and Death Decisions research group I am a part of, 49% of the sample surveyed did not know it was already legal to receive medication in order to relieve symptoms such as pain, even if giving such medication could hasten death (and a further 35% did not know whether it was or not legal). Indeed, it should be noted (as per page 156) of this guidance from the Royal College of Physicians (full disclosure, I was on the working group): “[w]here drug doses are necessarily escalated to control symptoms, they are neither lethal nor harmful” (see also this explanation from Professor Katherine Sleeman). In other words, in very many cases it is not even necessary to start grappling with the ethical complexities of the so-called doctrine of double effect.
But if there is any doubt as to the lawfulness of what is currently done by way of appropriate symptom control in the context of those who are terminally ill, many people might well feel that putting that beyond doubt would be very helpful – and that might well include who also wish for doctors to go further.
No doubt claim and counter-claim will continue to be flung around as Parliament approaches the Second Reading of Ms Leadbeater’s Bill on 29 November. Attacks will be made on motives. Personal attacks will be made on those who support, those who oppose, and those who say that they find the situation complicated and would like more time and impartial support to think it through. All of that might just be said to be politics. It might also be said to be a challenging environment in which to create good law on so important an issue.
