So, Keir Starmer had himself filmed making a personal promise to TV celebrity Esther Rantzen – Democracy 2024, innit – and now backbench Labour MP Kim Leadbeater, having had her numbered wooden ball pulled out of a glass bowl at just the right moment – Democracy 2024 again, innit – has introduced a Private Members’ Bill (PMB) to legalise assisted dying for terminally ill adults in England and Wales. MPs will hold their first debate on the Bill – known as Second Reading – on Friday (sic) 29 November.

In fact, all that Starmer promised Eshter Rantzen – and the electorate – prior to the General Election on 4 July was that he would “make time available [for a debate and a free vote]” on assisted dying. He didn’t mention Private Members’ Bills during his staged conversation with Esther Rantzen in March, and the words he used suggest that what he actually had in mind was a debate and free vote in government time, at some point in “the next Parliament”. But, without actually delivering on that promise, he has, in his own words, now taken advantage of “an opportunity that has arisen” – Ms Leadbeater’s PMB.

Earlier this week, Ms Leadbeater idiotically told viewers of BBC Newsnight – all six of them – that her PMB is “potentially one of the most important changes in legislation that we will ever see in this country”. And, who knows, maybe it is. I’m undecided about assisted dying – no one wants to die a horrible death and, like Woody Allen, I am allergic to pain. The only good thing about watching my then best mate die, after he stupidly fell off Ben Nevis at the ripe old age of 43, was knowing that he hadn’t suffered more than two or three seconds of fear and pain.

Short of dying peacefully in our sleep, many of us would opt for such a quick and clean exit from life, if we could. I am an atheist, and would describe myself as a humanist. So I am instinctively sympathetic to the case for assisted dying. But the risks of legalising the assisted suicide of vulnerable, scared and therefore potentially manipulable people are not hard to see. There’s a good exploration of some of the issues involved here.

However, I have spent much of my professional life working on legislative reform, including four years in the House of Commons as staffer to an MP who was not averse to using a PMB as a vehicle for her (not always mainstream) views and (not always practicable) policy proposals. And if there is one thing I learned from that experience it is that, in the 21st Century, the deeply defective and chronically anachronistic PMB process is not the way to make any important change in legislation, let alone ‘one of the most important changes in legislation that we will ever see in this country’.

Indeed, I would expect a notionally progressive government with an explicit manifesto commitment to “modernise the House of Commons” to be busy abolishing – or, at the very least, reforming – anachronisms such as the PMB circus, not nudging backbench MPs to have a go at introducing ‘one of the most important changes in legislation that we will ever see in this country’ without proper parliamentary scrutiny, so that the Prime Minister can say he has delivered on his promise to a TV celebrity.

Reasons why the PMB process fails to provide proper scrutiny include:

• While PMBs go through the same legislative stages as government bills, the process is different and key Commons stages – the Second Reading debate, and Report stage/Third Reading – take place on Fridays, when there is no government business and most MPs are in their constituency, not Westminster. This hands significant leverage to single-issue campaign groups able to motivate and mobilise their supporters in the Commons, and means a PMB can pass Second Reading even if a majority of MPs don’t attend and don’t vote.
  
• Unlike with government bills, debates on PMBs are not subject to a programme motion, (that is, they are not timetabled), but the Second Reading and Report stage/Third Reading debates must conclude by 2:30pm (i.e. just five hours after starting), if the Bill is to proceed, and by convention there are no time limits on speeches. This militates against proper debate – and therefore proper scrutiny – because just a handful of hostile MPs can time-waste and filibuster, with speeches and interventions by supportive MPs simply helping to run down the clock.
  
• At Second Reading, both government bills and government hand-out PMBs are accompanied by explanatory notes and an impact assessment prepared by the relevant government department, and these are an essential aid to proper scrutiny. But, as Kim Leadbeater’s Bill is not a government hand-out PMB, there will be no such explanatory notes or impact assessment. In September 2015, Rob Marris MP’s Assisted Dying (No 2) Bill – the last PMB on assisted dying to be debated by MPs – was not accompanied by such explanatory notes and impact assessment at Second Reading (which it failed to pass), as it was also not a government hand-out PMB.
  
• At Committee stage, unlike with government bills there is no provision for the taking of external evidence from experts or members of the public. And, if MPs are considering ‘one of the most important changes in legislation that we will ever see in this country’, maybe they should be taking full account of such external evidence. Furthermore, the PMB’s sponsor gets to choose the committee members. So, while the committee membership must “reflect the balance of views on the Bill”, the sponsor can exclude the strongest critics of the Bill.
  
• As with Second Reading, at the crucial Report stage, the strict five-hour time limit means that hostile MPs can seek to block further progress of a PMB by tabling an excessive number of amendments – because, unless all such amendments are considered, the PMB cannot proceed to Third Reading. This is a more subtle way of blocking a PMB than filibustering at Second Reading.
  
• In practice, because the sponsor of a PMB is a backbench MP (and then a backbench ally in the Lords), rather than a departmental Secretary of State, it is easier for government ministers to avoid accountability for the likely impact of the Bill during its passage through the Commons and Lords.

In September, after Observer journalist Sonia Sodha posted on X/Twitter that “it’s crazy to believe something so complex [as assisted dying] should be fast-tracked legislatively using a Private Members’ Bill”, the Labour MP and former Chair of the Committee on Standards Chris Bryant popped up to say:

That’s how we changed the law on homosexuality, the death penalty and abortion. It doesn’t mean lack of scrutiny. It just meant lack of whipping.

Leaving aside that the story of the abolition of the death penalty, for example, is a lot more complex than Sydney Silverman’s PMB in 1965 – there had been a four-year Royal Commission on Capital Punishment 1949-53, and the Homicide Act 1957, which started life as a government bill, had already abolished the death penalty in most murder cases – it’s a bit depressing to hear a senior MP say ‘this is how we did things in the 1960s, so it’s fine to do it this way, 60 years later, in 2024’.

Societal norms, and public attitudes towards and expectations of our parliamentary democracy, have changed enormously since the mid-1960s, when Sydney Silverman’s short, four-clause Murder (Abolition of Death Penalty) Act 1965 finally abolished the death penalty in all cases of murder, Leo Abse’s 11-clause Sexual Offences Act 1967 partly decriminalised homosexuality (in England and Wales, at least), and David Steel’s seven-clause Abortion Act 1967 first legalised abortion. So what was necessary (to achieve progressive reform) then, is simply not necessary now.

In 2024, there is simply no good reason why a government recently elected on a platform of ‘change’ and an explicit manifesto commitment to “modernise the House of Commons” should use the defective and anachronistic PMB process to ensure a ‘debate and vote’ on an issue that it failed even to mention in that manifesto. With a 174-seat majority, Keir Starmer has any number of options for holding a Commons debate (and free vote) on the principle of assisted dying in government time, thereby delivering on his promise to Esther Rantzen (which wasn’t that he would ‘change the law’).

Were such a free vote on the principle of assisted dying to reveal a majority in favour among MPs, the Government could then establish a Royal Commission or ask the Law Commission to examine the issues and make recommendations for legal reform. If we are going to make ‘one of the most important changes in legislation that we will ever see in this country’, it is surely worth spending a bit of time getting it right.

But giving a nudge and a wink to Kim Leadbeater and her PMB in order to deliver on that somewhat undemocratic promise risks lumbering Parliament, the Statute Book and, ultimately, the public with poorly considered (so quite possibly flawed) new legislation on a complex and contentious issue. And, on 4 July, not a single person voted for that.

Update, 28 October: Two key cabinet ministers – health secretary Wes Streeting and justice secretary Shabana Mahmood – have now said they will vote against Leadbeater’s PMB, and there are growing signs of unrest among backbench Labour MPs about proper scrutiny of the Bill, which has still not been published. Indeed, with a number of Tory MPs piling in, Labour’s handling of Starmer’s unwise promise to Esther Rantzen is starting to look like yet another magnificent own goal.

Further update, 12 November: So, last night Kim Leadbeater published her Terminally Ill Adults (End of Life) Bill – all 38 pages of it, with 43 clauses and six schedules, making it one of the longest PMBs ever, and certainly far longer than the three 1960s PMBs referred to above. And there are Explanatory Notes prepared by Ms Leadbeater. However, there is no Impact Assessment and, as legal academic Yuan Yi Zhu noted last night, “more than half of [the 22-page Explanatory Notes] is just verbiage about why assisted suicide is great”. Indeed, to my mind, the Explanatory Notes add little if anything, and read more like a tick-box exercise.

In his thread on X/Twitter last night, Yuan Yi Zhu provides a handy summary of the Bill’s provisions, including what Ms Leadbeater describes as “the strictest safeguards of any legislation [on assisted dying] in the world”. Similarly, at a press briefing in the House of Commons this morning, Lord Falconer claimed the Bill has “the best and most robust safeguards in the world”.

This may or may not be true, but the fact is you don’t get ‘the best and most robust safeguards in the world’ for free. Indeed, it’s clear that, as Observer journalist Sonia Sodha noted last night, the Bill “would potentially impose massive capacity issues on the NHS/medical profession, on the chief medical officers, and on the family division of the High Court”. Kim Leadbeater has reportedly said that up to 3% of deaths would be covered by the provisions of her Bill, and in 2023 there were some 575,000 adult deaths in England and Wales (the total number of recorded deaths was 581,363, of which 3,743 were of children under the age of 18). So, even if only 2% of adults chose to apply for assisted dying, there would be some 11,500 applications per year.

Significantly, in terms of the Bill’s progress towards the Statute Book, those public spending implications mean that, even if the Bill passes Second Reading on 29 November, a money resolution would be needed before the Bill could proceed to committee stage. And only the Government can table a money motion.

So, to my mind, the Bill is dead in the water unless the Government abandons its supposed neutrality by agreeing to pick up the tab for the safeguards – however much it is. Which would be an odd thing to do, just weeks after banging on about a fiscal black hole. Indeed, this alone may explain why both health secretary Wes Streeting and justice secretary Shabana Mahmood have let it be known they will vote against the Bill at Second Reading. [On 13 November, Wes Streeting warned that legalisation of assisted dying would have significant resource implications for the NHS.]

It is true, as legal academic Daniel Gover noted to me this morning, that the Cabinet Office Guide to Making Legislation states (in paragraph 45.40, on PMBs) that “Moving such a [money] motion does not necessarily indicate government support for a [PMB]”. But the word ‘necessarily’ is doing a lot of heavy lifting there, not least because PMBs almost invariably provide for relatively minor and non-contentious legal reforms. And, of course, just like the Pirate Code, the Cabinet Office Guide is more like guidance, not a set of rules.

So, while it may be technically possible for the Government to table a money motion while still claiming to be neutral on the Bill, thereby smoothing the Bill’s onward passage to committee stage, to my mind this would look like the Government giving the Bill favourable treatment. Because the Government would be giving the Bill favourable treatment (just as it would be if it intervened to allow for e.g. time limits on speeches in the debates, as some procedural experts have suggested). And, politically, perceptions are important.

What’s more, I suspect such facilitation of the Bill’s progress towards the Statute Book, under the cloak of supposed neutrality, would lead to a not insignificant row between senior ministers over the cost implications and how or where the money to cover those new costs would be found. Which brings me back to the title of this post: Kim Leadbeater may have got Keir Starmer off the hook of his promise of a vote to Esther Rantzen, but at what cost?

If there is anyone sensible in Downing Street, they should be working towards killing off the PMB at Second Reading on 29 November. Otherwise, what has rapidly become a bit of a farce – with even a co-sponsor of the PMB, Lib Dem Christine Jardine MP, completely unable to explain how the ‘most robust safeguards in the world’ would actually work, and Leadbeater complaining bitterly about health secretary Wes Streeting’s (quite understandable) intervention about the cost implications – will rumble on for months. Because the first ‘remaining stages’ PMB Friday of the 13 scheduled sittings – i.e. the earliest date on which Leadbeater’s PMB could normally be expected to have its Report stage and Third Reading – is not until 25 April (the first seven of the 13 scheduled PMB Fridays are set aside for the Second Readings of PMBs). After which, the Bill would be debated – and picked apart – in the Lords.

Further update, 14 November: Indeed, during Business Questions in the Commons earlier today, the Leader of the House of Commons, Lucy Powell, told MPs that the PMB’s committee stage is likely to last “several weeks”, and that Report stage/Third Reading “will not be until April at the earliest”. And, shortly after Ms Powell sat down, the Transparency Project published a lengthy demolition of the PMB’s proposed safeguards by Sir James Munby, former President of the Family Division of the High Court. This will be a vital resource for those charged with drafting Second Reading speeches for an MP opposed to assisted dying, with choice soundbites including this zinger:

How confident can we be that the procedures set out in the Bill will be adequate to enable the court to identify and prevent possible abuses and in particular be adequate to detect what may be very subtle external pressures?

My answer is very simple. Only those who believe implicitly in judicial omniscience and infallibility – and I do not – can possibly have any confidence in the efficacy of what is proposed.

Do ministers really want another five or six months of this?

Update, 3 December: Today, with the PMB undergoing painful examination in the House of Lords, the Guardian reported a leaked Labour Party policy memo, the contents of which suggest that, ahead of last year’s general election, the Labour leadership planned how to introduce assisted suicide via a Private Members’ Bill. Well, blow me down with an Order Paper.