Charlie Falconer shouldn’t be allowed to bully the House of Lords to its own assisted suicide
Labour MP Kim Leadbeater’s Terminally Ill Adults (End of Life) Bill was first debated by the House of Lords in September. Its sponsor in the upper house, Lord Falconer of Thoroton KC, warned his colleagues they did not have the right to reject the bill or to try to prevent its passage.
“Ultimately, on an issue such as this in our system, somebody has to decide … that means it will have to be those who are elected — not those who are unelected — who make that decision.”
Falconer has impressive credentials: a successful barrister who took silk before he was 40, he served as Solicitor General and as Constitutional Affairs Secretary and Lord High Chancellor, which meant he was also for three years the presiding officer of the House of Lords. With such credentials comes responsibility, because he will be listened to on constitutional matters; but in support of Leadbeater’s bill he is peddling a skewed and self-serving interpretation of our laws and conventions.
Let us recall how we arrived here. The bill, which is a backbench proposal rather than a government measure, was given a Second Reading in the House of Commons last November by a majority of 55. It underwent a long, gruelling and fractious Committee Stage and, as amended, was passed in June by a reduced margin of 23. It was then introduced into the House of Lords by Falconer and was given a Second Reading without a vote in September. Now it has reached Committee Stage, but more than 1,000 amendments have been submitted.
Falconer’s fear is that the bill’s opponents will try to drag out proceedings to such an extent that it risks running out of time by the end of this session of Parliament, expected some time in the spring next year. If it has not been agreed by the Commons and Lords by then, it cannot pass.
Consequently, Falconer told the Lords “we must do our job in this House, and our job is not to frustrate, it is to scrutinise”. He emphasised how thoroughly the Commons had looked at the bill and concluded that the overriding priority for the Lords must be to agree to the bill so that it became law this session.
In fact he has gone further. On the Hansard Society’s Parliament Matters podcast on 14 November, he asserted:
I’d say it is a constitutional principle, they cannot say no to the Bill… ultimately, in our constitution, the key constitutional underpinning is the primacy of the Commons… if the Commons, the elected representatives, have decided after very prolonged debate, there should be an assisted dying bill, then the role of the Lords is not to say no.
There are undoubtedly limitations on the powers of the House of Lords. Under the Salisbury-Addison Convention, the upper house will not reject or wreck a bill which fulfils a manifesto commitment made by the government; and in recognition of the Commons’ financial privilege, the Lords agrees to Finance Bills without amendment. If the two houses cannot agree, the government has the “nuclear option” of the Parliament Acts 1911 and 1949 under which a bill agreed by the Commons but rejected by the Lords twice in two sessions can become law anyway. This has only been used seven times in 114 years.
Falconer’s position takes those limitations further. He argues that the primacy of the Commons, derived from its elected status, is in effect absolute: the Lords can never reject a bill outright. Nor can it even seek to delay a bill to make its passage impossible in practical terms. It can scrutinise and amend, so long as it ensures the bill is ultimately passed into law.
This is simply not the case. The Salisbury-Addison Convention does not apply as the bill was not in the government’s manifesto. Nor had Falconer always taken this view: in 2015 he warned that the Lords could defy the government’s attempt to repeal the Human Rights Act 1998; he claimed the Lords would reject the European Union (Withdrawal) Bill in 2017; and only last year he vowed to “rally all our troops” to “defeat” the Safety of Rwanda (Asylum and Immigration) Bill. But then, those were measures he opposed rather than supported.
In September, the House of Lords Constitution Committee published a short report on Leadbeater’s and Falconer’s bill, and its conclusion was unequivocal: “It is constitutionally appropriate for the House to scrutinise the Bill and, if so minded, vote to amend, or reject it.”
If Falconer’s thesis were to prevail, there would hardly be any point in a second chamber at all
The committee must be right. The Lords can reject a bill which does not fall under the Salisbury-Addison Convention, and the Commons can resort to the Parliament Acts to insist on a bill’s passage. These are and should be extremely rare occurrences, and the Lords has only rejected three public bills at Second Reading in the past 25 years.
If Falconer’s thesis were to prevail, there would hardly be any point in a second chamber at all. Who would decide how much scrutiny was “enough” and how many amendments would be permitted to be tabled? Who would blow the whistle when it was time to stop and return the bill to the Commons to allow it to become law?
With his own bill, Falconer seems to suggest that he is the arbiter and that he can divine from the ether whether amendments are being tabled in good faith or as a kind of filibuster.
No constitutional convention can rest on what a former Lord Chancellor “reckons” with regard to a bill of which he is a vehement supporter. Even without a codified constitution, the rules have to be universal, not dependent on the feelings of one of the protagonists. That is why this is more important than just the bill under consideration: what happens on assisted dying will set a precedent.
There are many arguments for reforming the House of Lords and the wider constitution, but Falconer is making none of them. Instead, he is reimagining the status quo, using the position of the Commons to dissuade the Lords from opposing his bill, and it is dishonest and dismissive of his opponents. Whether the assisted suicide bill passes or not, this is about a fair, thorough and legitimate legislative process. On Brexit and Rwanda, Falconer was a dogged defender of the House of Lords. Now there is a measure he supports, he warns of an affront to democracy. Not even a former Lord Chancellor can have it both ways.
