The Government must take responsibility for Leadbeater’s flawed Bill
It’s possible to think that assisted dying should, in principle, be legalised – as three-quarters of people in the UK do, according to YouGov – while doubting that the Leadbeater bill is the right vehicle for doing so.
Akiko Hart, Director of the human rights organisation Liberty, agrees. The bill, she says, is “just not robust enough” and is being “rushed”. Undue haste risks confining our focus to those “who might benefit from assisted dying” at the expense of vulnerable people “who this Bill might harm”.
As barrister Tom Chacko puts it, the bill might suit its “target demographic” of “the well informed, financially secure, determined applicant”. But what about those who could feel compelled to “choose” assisted dying because they are led by their family, social or economic circumstances, or by uncertainty about the availability of suitable palliative care, to conclude that hastening death is their least-worst option?
The bill’s supporters, who wish to relieve suffering, extend choice and respect individuals’ autonomy, are doubtless well-intentioned. But the devil is in the detail. It is, for instance, one thing to say, as the Bill does, that those requesting assisted dying must not have been “coerced or pressured”. But the bill, its much-vaunted “safeguards” notwithstanding, makes no meaningful provision for genuinely verifying that that condition is met.
In this context, getting the detail right really counts. It is literally a matter of life and death. And it requires more time and care than is afforded by the process whereby this bill is being taken forward. At one level, the fact that the assisted dying bill is a private member’s bill just means it is being considered by Parliament at the initiative of an individual MP rather that the government. That might seem an unimportant technicality, particularly given that private members’ bills still have to go through all the normal stages of parliamentary consideration.
But making law is not only about what happens once a bill begins its passage through Parliament. An enormous amount of work needs – or at least ought – to be done long before that stage. On especially difficult or sensitive questions, that might mean involving the Law Commission or establishing a Royal Commission or similar.
As the Institute for Government has noted, when, in the 1980s, it was necessary to legislate on assisted conception, the Thatcher government established an expert committee chaired by eminent philosopher Baroness Warnock. Her report facilitated legislation that provided a lasting, considered legal framework for embryo research and surrogacy.
Even if such elaborate steps are not taken, the government’s own Guide to Making Legislation sets out a substantial pre-legislative process that involves defining the “policy problem”, informally engaging with interested parties, formally consulting, and then publishing “a full assessment of economic, social and environmental impacts”. This means that when it is time for parliamentarians to consider the bill, they can do so in a fully informed way.
None of those things has happened in relation to the Leadbeater bill. Far from undertaking essential preparatory work, the government has washed its hands of the matter in ways that are constitutionally puzzling to say the least. For instance, following the prime minister’s suspension of “collective responsibility” – a step that normally frees Ministers of their duty to tow the official line and allows them instead to speak out – the cabinet secretary, bizarrely, has banned them from doing so. This has had the effect of implying, wholly misleadingly, that there is something dubious about relevant ministers, such as the Health and Justice Secretaries, raising concerns about the bill.
Meanwhile, the government’s own guidance says that if it is to remain neutral on a private member’s bill, that must be “collectively agreed by Ministers” (not simply decided by the prime minister) and that, a month before the bill’s second reading, the government must produce (among other things) an impact assessment and a legal issues memorandum. Yet with less than a week to go, those documents are nowhere to be seen.
Superficially, using a private member’s bill to tackle a thorny issue like assisted dying seems like a win-win: the government can remain above the fray and Parliament can take the initiative. The reality is very different.
The process that has been adopted means none of the essential groundwork has been undertaken; the government – which, if the bill passes, will be responsible for its implementation – has no publicly stated position on its workability or implications; and MPs, left in the dark on those crucial matters, are denied the opportunity to reach a genuinely informed view on the bill.
Whatever one thinks about assisted dying, a matter of such importance deserves to be dealt with in a way that is procedurally and constitutionally beyond reproach. Viewed in those terms, the Leadbeater bill leaves much to be desired.
Mark Elliott is Professor of Public Law at the University of Cambridge