Asking Vital Questions
The Terminally Ill Adults (End of Life) Bill has been described by Rosie Duffield MP as “one of the biggest social changes to be decided here in our lifetimes”, leaving “no room for mistakes … this is a matter of life and death”. Many voices have highlighted the moral, ethical, and medical arguments for opposing what is known as the ‘Assisted Dying Bill’, with the Royal College of Psychiatrists formally withdrawing its support, and many citing the threats to the vulnerable. In terms of procedures, a senior academic, Mark Elliott, Professor of Public Law at Cambridge University, former Chair of the Cambridge Law Faculty 2019-2024, and Legal Adviser to the House of Lords Constitution Committee, has written that “a matter of such importance deserves to be dealt with in a manner that is procedurally and constitutionally beyond reproach”.
With so many concerns regarding the content of the bill, can we at least be sure that the passage of the bill has been handled in a way that is beyond reproach? And if it should turn out that this is not the case, what would the consequences be? Let us have a close look at the processes followed.
The Passage of the Assisted Dying Bill through Parliament
There is a wealth of information on which to draw. In mid-May, several months after the second reading of the bill on 29 November 2024, and ahead of the third and final reading on 20 June 2025 (when the vote was passed by the House of Commons with a majority of just 23), two disabled women, Nicki Myers and Nicola Waters argued that:
- The timing of the bill was wrong when social security, fuel allowance, health, social care and palliative care services are all simultaneously under threat.
- Bringing the bill as a Private Members’ Bill (PMB) has meant that people’s voices are ignored.
Supported by organisations for the Deaf and the Disabled (DDPOs), they argue that the bill violates the UN Convention on the Rights of Disabled People (UNCRPD), with their complaint highlighting:
- The absence of pre-legislative consultation or scrutiny.
- The speed at which the bill was progressing.
- The fact that the PMB procedure used does not have to meet the same human rights and equalities compliance requirements as government bills.
Many MPs have also expressed concerns about the use of a PMB. Here is independent MP Rosie Duffield writing on 16 May:
The mechanism of a Private Members’ Bill is simply not equipped to facilitate the highest level of debate and scrutiny that is required — and that the public rightly expect — on an issue of such personal and legal complexity. Again today, Members of Parliament were unable to contribute to the debate on behalf of their constituents due to a lack of time. In my eight years of being an MP, this is almost unprecedented. Many MPs share my concerns that this bill is being rushed through. This cannot be the right way to legislate for an issue of such significance.
Shabana Mahmood, Justice Secretary, referred at the end of May to the “inadequacies” of using a PMB to bring forward The Terminally Ill Adults (End of Life) Bill laws. Then on 5 June, Dr Ruth Fox and Matthew England of the Hansard Society, the organisation that declares itself dedicated to its founding principle of support for parliamentary democracy, wrote that, “The argument that this should have been a government bill remains compelling. A government-led approach could have offered formal consultation, comprehensive policy development, pre-legislative scrutiny and the symbolic weight of state endorsement”. They added that the Assisted Dying bill amends several statutes as well as the principles of the NHS, features that distinguish the bill from the hallmarks of a usual PMB.
Just ten days later, on 15 June, a group of more than 50 Labour MPs, concerned about “the most consequential piece of legislation that has appeared before the House in generations”, wrote to the Leader of the UK’s House of Common asking her to postpone the third and final vote scheduled for 20 June. Included in their points was the fact that MPs had been able to vote on just 12 of 133 amendments tabled at Report Stage, with only 14% of MPs allowed to speak on the Bill in the House. Indeed, they stated that several movers of amendments had not “been able to speak to the changes they [had] laid”. It was the Prime Minister who responded to this letter from Labour MPs, announcing that there had been a “lot of time” to debate the legislation and that no delay would be allowed.
So, by the time that the final Commons vote took place on 20 June, a chorus of voices had spoken out against the processes employed, and the gravity and reach of the bill make it imperative to understand whether the Bill has been dealt with in a manner that, in Professor Elliott’s words, is “procedurally and constitutionally beyond reproach”.
Let us begin with the issue of the Private Members’ Bill.
The Private Members’ Bill
Concern with the presentation of the bill as a PMB rather than a government bill was expressed by many MPs including the Justice Secretary, Shabana Mahmood, as well as by the independent MP, Rosie Duffield, and more than 50 Labour MPs. They are not alone, since Robert Hazell and Fergus Reid wrote in 2018 that “a typical PMB is likely to: be short, with a narrow scope and limited main purpose(s)”. Hazell is a Professor of Government and the Constitution, Department of Political Science, UCL.
Another academic, Mark Elliott, Professor of Public Law at the University of Cambridge, has written about his apprehension that:
Legislation on complex and socially contentious matters might be better enacted other than as a Private Members’ Bill, both in terms of the pre-legislative phase and the legislative process itself. Regarding the former, legislation on a matter as significant and contested as assisted dying might, for instance, be expected to be undertaken only following the sort of deliberative process that could be facilitated through the involvement of the Law Commission or the creation of a Royal Commission. The present Bill, in contrast, has benefitted neither from those processes or from anything comparable.
Where the pre-legislative phase is concerned, Elliott quotes the Cabinet Office’s 2025 Guide to Making Legislation that mandates the undertaking of impact assessments for proposed legislation: a process that involves defining the relevant “policy problem”, identifying a range of potential solutions “through engaging with interested parties ahead of formal consultation”, going through a formal consultation process, and, ultimately, publishing the full impact assessment “when the Government announces its firm position on a single policy option” and “again when the proposal enters Parliament”.
In reality, an impact assessment was only published on 14 May 2025, more than six months after the Bill’s second reading on 29 November 2024. What is more, as Nicki Myers and Nicola Waters pointed out, there was no public or stakeholder consultation, a standard feature of government bills, before the PMB was launched.
In terms of the legislative phase, Professor Elliott points out that a PMB does not need to be published until the second reading, and that therefore the scope for public debate and scrutiny may be significantly more limited than with Government bills that are published immediately following their first reading.
Criticism of the processes used is not limited to MPs and senior academics, since a November 2024 Hansard Society publication, ‘The Assisted Dying Bill: A Guide to the Assisted Dying Bill and the Private Members’ Bill Process’, notes that:
Most PMBs are smaller and less controversial [than the Assisted Dying Bill] … The Bill is unusually long for a PMB, spanning 32 pages of legal text, comprising 43 clauses and six schedules, and with financial and other consequences for the NHS and the court system.
Bear in mind that by the time the final vote on the Assisted Dying bill took place, it had expanded by a further 50% to 64 clauses and two schedules, making the Hansard Society’s comments all the more compelling. To underscore the unsuitability of a PMB for a matter of the scale and importance as Assisted Dying, the Hansard Society’s guide explains that PMBs are “typically small technical measures that generally require, and receive, less parliamentary time for scrutiny than Government bills”.
The lesser complexity, and therefore length, of earlier PMBs may explain why the 2022 Hansard Society’s document concerning PMB procedures states that “there is no end date for a PMB” and “no time limits on speeches”, with the time required for committee consideration of the PMB dependent on “the nature of the bill and the level of interest in it”. The sense that the timescale is infinitely elastic appears also in the Hansard Society’s Guide of November 2024, which confirms that PMB Committee deliberations face no time limits and that they could dedicate as much time as committees deem necessary to scrutinise the PMB, a process permitting “more tailored scrutiny in Committee”.
At the same time, procedures are such that Parliamentary debate on a PMB can only take place on thirteen Friday sittings per Parliamentary year and so the time allowed for Parliamentary debate and committee sessions are tempered by the constraint of having to be complete by the eighth or ninth Friday of the 13 Friday sittings. Given that “most PMBs are smaller and less controversial” than the Assisted Dying Bill, the constraint of completing deliberations by the eighth or ninth sitting will not impose undue pressure on earlier PMBs. However, in the case of a bill of the length, importance, and complexity of the Assisted Dying Bill, this timetable constraint will curtail debate in a way not intended by the PMB instrument. This fact may have informed the Hansard Society’s view, expressed in its guide that going down the route of a Government bill—these can be debated on almost any sitting day of the week, depending on the legislative calendar and are typically given priority over PMBs, with more time allocated for discussion—would have afforded much greater scheduling flexibility.
As it is, the consequences of the curtailed timetable are the subject of many of the complaints made by the 50+ MPs. In addition, it was the reason for scheduling PMB committee sessions into the late evening, with one committee member, Naz Shah MP, an opponent of the bill, unable to remain for the entire session since her hearing aid batteries (on which she relied to hear proceedings) would not stay the course. It is likely also to have been at the root of the shoehorning of 50 witnesses into a period of just three days, and may perhaps also explain the failure to take witness testimony from crucial stakeholders such as the UK Deaf and Disabled Coalition, the British Geriatrics Society, Hourglass (the UK’s only charity supporting older abuse victims), and Standing Together Against Domestic Abuse (an organisation that works to combat abuse and coercion).
Not only this, but according to the Director of the Hansard Society, Dr Ruth Fox, writing alongside her colleague Matthew England, the tight timescale had the effect of limiting “the depth of policy design”. A direct effect of this has been to leave decisions concerning significant operational detail to ministers, on whom 34 delegated powers for the creation of secondary legislation have been bestowed. This, in delegation of substantial powers to ministers and away from parliamentary scrutiny, is said to “raise important questions about democratic oversight”.
As if this is not all problematic enough, Dr Ruth Fox and Matthew England highlight two further problems. The first is that a higher proportion of the witnessescalled leaned in favour of the bill than against, something avoidable in their view with a government bill where the witness list would be more evenly divided. The second is that supporters of the bill were modestly over-represented in the committee compared to the Second Reading result.
Government Neutrality
Professor Elliott refers to the fact that the neutral stance claimed by the Prime Minister in respect of the bill was not sufficient in itself and that a number of documents should have been created to formally register the government’s neutrality, and submitted one month prior to the second reading. Dr Ruth Fox and Matthew England make the same point, stating that a neutral stance by government on a Private Members’ Bill “must be collectively agreed by Ministers and with the usual documenation”.
The documents that must be submitted consist of “a Parliamentary Business and Legislation (PBL) Committee memorandum, bill print and explanatory notes (where possible), impact assessment, legal issues memorandum and delegated powers memorandum”. All of these, according to the Cabinet’s Guide to Making Legislation, “must be sent to the PBL Committee and the relevant policy committee of Cabinet at least one month before Second Reading”. Were these procedures followed?
One of the required documents is the ‘Delegated Powers Memorandum’ (DPM) which, according to the Hansard Society, is typically published “when, or shortly after” a Government bill is presented to Parliament, with the DPM “ideally published before the Second Reading”. In fact, far from being published “when, or shortly after” the first reading (the time when the bill is presented to Parliament), it was not published until 10 April 2025, five months following the first reading on 16 October 2024, and four months after the second reading on 29 November 2024. A further document, the impact statement, required to be ready “when the proposal enters Parliament”, so at the time of the first reading, was not published until 14 May 2025, seven months after the Bill’s first reading on 16 October 2024.
As if the delays in serving these documents is not breach enough, Simon Case, the Secretary to the Cabinet, wrote a letter to Ministers on 3 October 2024 stating that the Government would remain neutral “on the passage of the bill and on the matter of assisted dying”, but documents were not comprehensively submitted one month ahead of the second reading (i.e., by 30 October 2024). What is more, Simon Case wrote that Ministers were to remain silent during the debate and Elliott describes this silencing of ministers as contrary to previous practice and therefore “odd”, “unconvincing”, and not “hold[ing] water”. Given that two key Ministers (the Secretary of State for Health and Social Care and also that for Justice) were opposed to the bill, might a cynic see this as a way of silencing dissent?
Opting for the Negative Procedure in Relation to Drugs
The language of Parliamentary procedure is highly specialist, and one distinction is between the “negative procedure” and the “made affirmative procedure”. The first refers to a procedure that does not need Parliamentary approval, while the second refers to one that does. What is the relevance to the Assisted Dying bill?
Well, the bill’s sponsor, Kim Leadbeater, opted for a “negative procedure” where the selection of drugs by Ministers is concerned, meaning that she intended that this should not be a subject of Parliamentary scrutiny. Here are the comments of the Hansard Society when reporting this:
The substances with which people will be permitted to end their lives will be a matter of considerable public and political interest. The negative procedure, however, would mean that the Secretary of State could add items to, and remove items from, the list of approved substances without any requirement for a parliamentary debate or vote, despite the likely level of interest in such regulations.
The Hansard Society goes on to state that:
A ‘made affirmative’ procedure would have permitted Parliamentary scrutiny if a change was made to the drug(s). The fact that there may be a need to make urgent amendments to the list in future is not a reason not to apply the draft affirmative procedure to the first set of regulations specifying the approved substances.
So, one might well ask why the bill’s sponsor opted for the “negative procedure” and the avoidance of Parliamentary scrutiny. We can only speculate as to the reasons for this, drawing on what commentators have stated. Here, for example, is veterinarian Dr Roger Meacock, informing us that:
Most assisted dying laws require the person to ingest the drugs themselves. This usually involves a mixture of oral medications, such as a sedative (e.g., diazepam or phenobarbital), followed by digoxin, amitriptyline, or a morphine derivative, which together stop the heart or suppress breathing.
He goes on to state the problem that is rarely, if ever, mentioned, is as follows:
This mixture of drugs can result in delayed and/or distressing effects because they can take up to hours to work. They can result in vomiting, delayed onset of unconsciousness, or fluid accumulation in the lungs causing a gurgling or drowning sensation.
Much of what Meacock writes here is corroborated and expanded upon by Dawn Lester, who has not only identified the mixture of drugs likely to be used (none of which have been approved for Assisted Dying) but also suggested, alarmingly, that they could produce a protracted and agonising death with the paralysing drug preventing the expression of intense pain. She also states that the combination would create the conditions that could be identified as “brain death”, a condition whose equivalence to death is disputed. On the other hand, as Dawn Lester points out, a diagnosis of “brain death”, rather than ‘death’, is necessary for successful organ harvesting.
Given the views of these commentators, might a cynic argue that a “made affirmative” option ensures that issues of these kind are not subject to open debate. We can only cast our net widely and speculate.
The Importance of Procedure
In a 2019 landmark case, the Court of Appeal regarded the infringement of procedural rules to be as important as the infringement of a court order, with this ruling relevant also to public law. One source on judicial procedure, has stated that:
The importance of procedure cannot be overstated. It helps protect the rights of all parties involved. If someone feels wronged, they can follow the established procedures to seek justice. This means that everyone gets a fair chance to present their side of the story. Without these procedures, the legal system could become chaotic and unfair, leading to confusion and potential injustice.
What of Parliamentary procedure? Well, many voices, including that of the Justice Secretary, have referred to the inadequacies of using a PMB for a matter with the complexity and reach of Assisted Dying. And many voices, including those of 50+ Labour MPs, have sounded the alarm regarding breach of PMB procedures as set down by the Hansard Society in 2022.
The Hansard Society is governed by a Board of Trustees, of which the Speakers of the two Houses of Parliament are honorary Co-Presidents. Will the House of Commons Speaker, Sir Lindsay Hoyle, and the Lord Speaker in the Upper House, Lord McFall of Alcluith, uphold the procedures set down by the Hansard Society? If procedure is paramount in the courts, must it not also be vital in Parliament, which creates the statutes?
Conclusion
Many voices, ranging from senior academics at Cambridge and UCL, the Director of the Hansard Society, and as disabled individuals and organisations, have grave concerns that the passage of the Assisted Dying Bill through Parliament has been irregular, and in breach of parliamentary and Hansard Society procedures. The Cambridge Professor of Public Law, Mark Elliott, has asked whether the Assisted Dying bill is “procedurally and constitutionally beyond reproach” and the overview of opinions presented here strongly suggests that procedures have not been as correct as they should have been.
The $64,000 question then arises concerning any failure of the bill to be procedurally ‘beyond reproach’. Should the breaches be put to one side and say, as the Director of the Hansard Society has done alongside researcher Matthew England, that Parliamentary reform of Parliamentary procedure is long overdue? Should we say, “whoops, yes, numerous regulations have been breached, and we must do better next time?” Or should we acknowledge the fatal impact of the breaches on the procedural correctness and constitutionality of the bill?
Given the many voices vouching for the enormity of the bill’s remit, with the death of potentially thousands of people at stake, and given the gravity and number of breaches committed, it may well be the latter path that should be followed. For, as we have seen the many voices speak of multiple procedural failures including the inappropriate use of a PMB which, with the weight and gravity of the subject matter, reduced the time for debate in both Parliament and in the committee, and allowed an unequal representation of proponents and opponents both on the committee and in the witnesses called. Moreover, the failure to follow prescribed procedures and timescales in declaring government neutrality, and the decision by the Cabinet secretary to disallow comments by Ministers are just some of the breaches referred to by many commentators.
Now that the bill awaits its second reading in the House of Lords on Friday 12 September—a reading that, according to Professor Mark Elliott, allows a PMB to be blocked by the House of Lords, this may be the moment at which to do so.