With Kim Leadbeater’s Terminally Ill Adults (End of Life) Bill (henceforth “Leadbeater Bill”) having passed third reading in the House of Commons, it has now moved to the House of Lords. We are thus being treated to an almighty row about whether or not the peers could legitimately block the bill.
On the one side you have even typically progressive constitutional scholars, such as Professor Mark Elliot; on the other you have Charlie Falconer, the former New Labour lord chancellor and justice secretary who now sits as a Labour peer, as well as various pundits.
The argument against is, more or less, a very basic misunderstanding (if we’re generous) of the Lords’ constitutional position in Parliament — that the undemocratic house must in all circumstances give way to the democratic house.
It is true that in our constitution it is held that the will of the Commons must ultimately prevail. There are, however, specific mechanisms by which this happens; the most obvious two are the Salisbury Convention, which holds that the peers will not block legislation promised in a government’s manifesto, and the Parliament Act procedure, which allows the Commons to force a bill through against the Lords’ wishes after a delay.
The very existence of these mechanisms ought to be compelling evidence that the upper house is not obliged simply to defer to the lower; were that the case, both would be otiose. Falconer probably knows this, because he has several times voted down legislation which had passed the Commons, including one in 2015 with a majority only one smaller than the Leadbeater Bill’s.
In the normal course of events, the Lords may delay legislation but not, at this point in a parliament, block it. Were the Leadbeater Bill a normal government bill, Sir Keir Starmer could be entirely confident in delivering it via the Parliament Act procedure.
But, of course, the Leadbeater Bill is not an ordinary public bill. It is a private members’ bill (PMB). This is a very different thing, and subject to very different rules — rules which Leadbeater and her allies have exploited to the full.
At every stage, there is less scrutiny and fewer safeguards on a PMB than a public bill. The Leadbeater Bill was drafted privately, by activists, and only published very shortly before it was introduced to the Commons; there were no consultations, evidence-taking exercises, or impact assessments; it is not owned by any minister or department, even though they will have to implement it (Wes Streeting, the Health Secretary, actually opposes the bill).
The sponsor of a PMB is granted enormous control over its passage through Parliament. Leadbeater generally had the running on which amendments to her bill were put to the Commons for a vote (despite only a hazy grasp of what different amendments actually did). She also controlled which MPs were selected for the committee stage; having skewed it heavily in the Bill’s favour, the committee then repeatedly tried to exclude witnesses helpful to their case.
In modern times, there are normally two countervailing safeguards to compensate for this extraordinarily truncated scrutiny, the first is that PMBs are normally used for matters either relatively trivial or which command very broad support. (Whilst historically they were used for things such as the Abortion Act 1967, this was before it was established that a government could offer a free vote on government bills; the AA also received over 600 hours of parliamentary time, despite being much shorter than the Leadbeater Bill.)
The second is that PMBs are fragile. They can only be debated on Fridays, there are only so many “sitting Fridays” in a parliamentary session, and a PMB must be passed within one parliamentary session (i.e. the period covered by one king’s speech) or it fails. This is why PMBs are vulnerable to being filibustered, as Christopher Chope is infamously fond of doing. That fragility is not an oversight or a flaw —it is essential. PMBs bypass so much of the scrutiny that goes into passing public bills that it would be extraordinary if they did not have some compensating vulnerability.
Supporters of the Leadbeater Bill, however, are trying to exploit the media and public’s hazy understanding of the fine details of parliamentary procedure to completely invert that logic; cognisant of the ticking clock, they are trying to use it to bounce the Lords into speedily passing the bill — turning a final safeguard into yet another shortcut.
Falconer’s fear will not be necessarily that the Lords will actually block the bill, although in theory they could; the fact the Parliament Act procedure requires an identical bill to be presented in successive sessions means the Leadbeater Bill would fail, and her supporters would have to hope both that a sympathetic MP won the drawn in next session’s PMB ballot and that the Commons would pass an absolute replica of the current Bill a second time.
Even if they don’t do that, however, the peers could cause an enormous headache for the Government if they simply do their job properly. Unlike the Commons, which in the Noughties greatly simplified its scrutiny functions in the name of “family friendly hours”, the Lords still does proper line-by-line consideration of legislation and takes much longer to do it, affording its members more time to speak and often sitting long into the night.
This is a thoroughly good thing, and why the upper house has ironically become more important since Robin Cook’s reforms to the Commons in the New Labour era. Today’s MPs pass more bills than ever and spend far less time on each one; it is the peers that do the unglamorous work of getting shoddy legislation into reasonable shape.
(Indeed, some MPs have become so reliant on this process that they have reportedly voted for the Leadbeater Bill at third reading in expectation that the Lords will sort it out (which paints our elected representatives in a rather sad and childlike light.)
But given that the Government already faces a significant legislative logjam, it could cause Starmer very real problems if the Lords gives the long, complex, and shoddily-prepared Leadbeater Bill the consideration it deserves; all of a sudden, his government’s actual agenda will be getting held up. This goes double if the peers decide to send the Bill back to the Commons with amendments, at which point Starmer will need to free up valuable Commons time.
None of this, however, should deter the House of Lords from subjecting the Leadbeater Bill to the fullest scrutiny — and not just because of the potentially terrible consequences for sick and vulnerable people if a bad law on this subject reaches the statute book.
No, the plain fact is that any comeuppance Starmer receives over this will be fully deserved strictly on grounds of constitutional propriety. If the Prime Minister is a convinced supporter of state-assisted suicide, he could have brought forward a public bill. He could have squared his Cabinet, done the necessary preparation, and subjected it to all the normal scrutiny. This really would have been the bare-minimum way to try properly to legislate on something this important which wasn’t in his manifesto.
Starmer, instead, tried to cheat. By farming the job out to Leadbeater, he avoided the hard political work of squaring his ministers, instead committing them to neutrality on legislation, which they would have to carry out, before they had even seen it. He also ensured it had all the procedural advantages of a PMB and then, by guaranteeing it as much parliamentary time as it needed, removed the fragility which is meant to offset those advantages.
Leadbeater’s allies are once again trying to short-circuit what safeguards Parliament has left
Now, as explained above, Leadbeater’s allies are once again trying to short-circuit what safeguards Parliament has left by demanding the Lords subject the Leadbeater Bill to less scrutiny than they would ordinary legislation, despite the fact it has already received less scrutiny in the Commons.
If nothing else, peers should think very carefully about the precedent they’re about to set. The Leadbeater Bill is a dangerous hybrid: a PMB which is a government bill in all but name — one which has enjoyed all the short-cuts and other advantages normally afforded to a PMB but, thanks to Starmer’s support, none of the drawbacks. It is legislative “deniable ops”, the parliamentary equivalent of those “separatist militias” fighting alongside the Russians in the Donbas.
Normally, so-called “handout” bills (where an MP who wins the PMB ballot takes forward a bill prepared by the government) are confined, as I said above, to matters either small or where there is broad consensus. They have not in modern times been used to try and deliver controversial and radical change, and in today’s parliament are grossly ill-suited for that purpose.
Even peers minded to support assisted suicide should pause to consider what other policies a future government could try to deliver by such underhanded means — especially if they now establish that a PMB has not only an easier time in the Commons, but the Lords as well.
