Lords free to reject bill

Assisted dying bill lacks detail, peers say, and clause is ‘highly skeletal’

It is “constitutionally appropriate” for the House of Lords to scrutinise the assisted dying bill “and, if so minded, vote to amend or reject it”, the Lords constitution committee says in a report issued ahead of today’s second reading debate.

The all-party committee reminds peers that the upper house of parliament plays an important role in the legislative process and that members should not feel constrained by the fact that the Terminally Ill Adults (End of Life) Bill was passed by the House of Commons in June.

That’s because this is a private members’ bill, introduced in the Commons by Kim Leadbeater MP and in the Lords by Lord Falconer of Thoroton. The Salisbury-Addison convention, under which “bills foreshadowed in a government’s manifesto are given a second reading in the Lords, are not subject to wrecking amendments and are passed in reasonable time”, does not apply.

The bill proposes allowing terminally ill adults in England and Wales with fewer than six months to live to apply for an assisted death. Approval would need to be granted by two doctors and a panel of a social worker, senior legal figure and psychiatrist.

Because the bill was introduced in the Commons by a backbencher, it did not receive the pre-legislative scrutiny from which the committee says it would have benefited:

The degree of deliberation, assessment and scrutiny is therefore significantly less than we would expect to see for an equivalent government bill. This is especially concerning given the subject matter of the bill.

In line with the what the government says is its “responsibility to ensure any legislation that passes through parliament is workable, effective and enforceable”, ministers have published an impact assessment, an equality impact assessment and a human rights memorandum. But these were not produced until after the bill had completed its committee stage in the Commons.

The impact assessment tries to compare the costs of setting up assisted dying services against the savings in healthcare, social care and state pensions. It speculates on the “approved substances” that might be used to facilitate death and records their average prescription costs — without being able to say what dosages would be required.

A separate report from the House of Lords delegated powers committee says parliament should be told which substances would be approved before the bill is passed.

The human rights memorandum confirms that article 2 of the European convention, which protects the right to life, is “engaged” by the bill. That means there must be “robust safeguards” to ensure compliance with the state’s positive obligations.

“Overall,” it says, “the government considers that the combination of these safeguards is sufficient to ensure that that an individual’s decision to end his or her life is taken freely and with full understanding of what is involved and to prevent interference with article 2.”

More broadly, the government is of the view that the bill is compatible with the human rights convention.

Delegated powers

The Lords constitution committee points out that the bill now contains 42 delegated powers. “In many areas, these powers are broadly framed and lack detail, delegating extensive discretion to government ministers. As this is a private members’ bill and the government remains neutral as to its purpose, it is unclear how these powers will be used.

In perhaps an unfortunate choice of words taken from the delegated powers committee’s report, the constitution committee says that clause 41, which allows ministers to set up voluntary assisted dying services in England and Wales, is “highly skeletal”. Further detail should be included on the face of the bill, it adds. Similar comments are made about other clauses.

Because so many peers wish to speak, the second reading debate will continue next Friday. Bills are normally given an unopposed second reading in the Lords, with challenges reserved to the committee stage that follows. In the case of this bill, that stage may turn out to be lengthy.