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Intro: [00:00:00] You are listening to Parliament Matters, a Hansard Society production supported by the Joseph Rowntree Charitable Trust. Learn more at hansardsociety.org.uk/pm.

Ruth Fox: Welcome to Parliament Matters, the podcast about the institution at the heart of our democracy, Parliament itself. I'm Ruth Fox.

Mark D'Arcy: And I'm Mark D'Arcy, and welcome to the latest in our series of special podcasts tracking the progress of the Terminally Ill Adults (End of Life) Bill, the Bill that will allow assisted dying in England and Wales.

And we're joined for this podcast to trace the latest developments by Matthew England, the Hansard Society's researcher who earlier this week was given this accolade by Robert Peston on ITV. 'Geek of the week'.

So Ruth, let's look at the latest developments.

Lord Falconer has both deployed a carrot and a stick. He's indicated his willingness to accept amendments on certain parts of his Bill, but there's also distinct mutterings about the [00:01:00] possibility of invoking the big stick in the parliamentary process, the Parliament Act, to force through the will of the Commons, even if the unelected House of Lords decides that it doesn't want to pass this Bill.

Ruth Fox: Yes, so Lord Falconer has written to Peers, but he's also launched a bit of a media campaign to basically make the case that we were making a couple of weeks ago, that this Bill, at the pace it's going in Committee in the House of Lords, is not gonna get through the House and it may not even get through Committee Stage by the end of the Session, which is thought to be mid-May or so.

And if it doesn't, then what do they do? And he's basically trying to persuade Peers to speed up, to not be pushing all the amendments, debating all the amendments at length, to persuade them that they need to focus down on some of the priority issues. He's written to them with a list of suggested amendments where he thinks that there's scope for compromise, where he's indicating [00:02:00] that he's wants to respond to the concerns of House of Lords committees, the Constitution Committee and the Delegated Powers Committee, and the suggestions that they've made to improve the Bill, responding to some of the amendments that have been raised by Peers. So he's outlined where he thinks there's scope for improvements to the Bill to be made, but as you say, he's also strongly implied that they will - who is they, Lord Falconer, the Government, it's a bit unclear who they is - but that the Parliament Act will be invoked if necessary, to force the Bill through in the next Session over the objections or the delaying tactics of the House of Lords.

Mark D'Arcy: At the moment, the central concern is the incredibly slow pace of the Committee Stage of this Bill, which has already been granted a considerable number of extra sitting days for Peers to debate its contents.

And now of course, we're recording this before the next Committee Stage is due on Friday the 29th of January. We don't know whether his words will have an effect on Peers and the pace will pick up, but I'm [00:03:00] guessing that they won't.

So Matthew, can you tell us what the nature of the problem is here? What are the figures behind this? Because when people talk about a go slow, sometimes parliamentary go slows are in the eye of the beholder. What are the figures on this one?

Matthew England: There are two main problems that the House of Lords is facing in dealing with this Bill at the moment. One is the sheer number of amendments that the House has to get through. And the other is the pace at which they're getting through those amendments. So they're going at a slow pace on a long road, as it were. So we've had 1200, roughly 1200 amendments tabled to this Bill.

That is the highest number for any Bill since 2006, when the Companies Bill was going through the House of Lords. And for context that ended up, at the time, being the largest Act of Parliament in history. So for context, this is quite a lot of amendments that the House of Lords has gotta get through.

Ruth Fox: And for context, the assisted dying bill is what about 50 odd pages?

Matthew England: Yeah. So for a Bill of this size, it's even more astounding the number of amendments that have been tabled.

If you just look at this session alone, the assisted [00:04:00] dying bill's got about 23 amendments proposed to it on average per page. And among the other larger Bills of the same size as the assisted dying bill or larger, none of them have even more than six amendments per page. It's going at four or five times the number of amendments per page for any comparable Bill this session. So it really is an astounding number of amendments.

But the second problem is the speed at which the House is trudging through those amendments. So the way things work in the House of Lords is that amendments which are related to one another are grouped together so they can be debated together to make things less repetitive and a bit more focused.

They've been grouped into 89 separate groups, so that's 89 mini debates that have to be dispensed with before Committee Stage can end. We've had seven days of Committee Stage and they've got through 20 of those 89 groups, so there's 69 groups still to go. And for context, there were only at the time of recording seven more sittings to go.

So if they went at the same rate. Seven sittings, 20 groups. They'd only get through another 20 and there'd still be 50 or so to go.

Mark D'Arcy: And, of [00:05:00] course the idea of these seven extra sittings, part of a large wodge of extra time that was allocated last year is not only to get through the Committee Stage, but to get through all the other stages for the Bill and at its present pace, the Committee Stage would more than absorb all those days.

Matthew England: Yeah, we've estimated that so far the Committee has been getting through a group of amendments in about an hour and 51 minutes. And if you extrapolate that across the remaining 69 groups that are still to go, that would take roughly the equivalent of 16 sittings, lasting eight hours each, and that eight hours is a Friday sitting with the extra three hours the Government's already granted. So 16 extended sittings it would take to finish the Bill. And the Government's only granted seven for all its stages. So if it's gonna take 16 at the current rate to finish Committee Stage, they're not gonna get through all the remaining stages in seven sittings.

Mark D'Arcy: And typically the House of Lords you get for every two days of Committee sittings, you would then have a day of Report Stage. So you'd then be looking at another [00:06:00] very lengthy Report Stage, and the legislative hamster wheel is turning too slowly here.

Matthew England: Yeah. And in the House of Lords, unlike the House of Commons, Third Reading has to take place on a separate day to Report Stage.

So that would be another day that would be eaten up by the remaining days. So yeah, there's nowhere near enough time.

Ruth Fox: Possibly even two days. Because they had two days for Second Reading as well, didn't they? And they had two days in the Commons.

Lord Falconer has basically said we're at an impasse. Either the Peers speed up, either they don't speak at length on these issues, which have, in his view, a lot of them have already been well rehearsed. Or it's gonna hit the buffers when the Session ends. The question I think is, can it get out of Committee and into Report Stage to get to the actual amending process? Because at Committee Stage, most of the debate is on the issues.

Mark D'Arcy: It's shadow boxing, in effect.

Ruth Fox: Yeah. And they don't actually hold the votes at Committee Stage. The votes on the amendments take place at Report Stage. So will they get to voting? I think they've had one [00:07:00] vote, am I right, Matthew?

Matthew England: They've had one vote on an amendment from Lord Falconer himself, which was just a small drafting change that was agreed without a division.

Ruth Fox: Yeah, so the question is, will they make any more changes? Because if they don't, then you are ending up with a Bill that hits the buffers with, as the Peers see it, lots of flaws and that then creates issues in the next stage if indeed the Parliament Act is gonna be invoked.

Mark D'Arcy: The reason why this is going slowly is that the House of Lords does not have the kind of timetable process that operates in the House of Commons. In the House of Commons, certainly for a Government Bill, there would be a clear cut off point for debate, and anything that wasn't dealt with by then just goes through. The House of Lords complain about this very frequently when Bills that have gone through that particular syndrome arrive on their doorstep and they have to do the tidying up necessary. But the House of Lords has a sort of backstage process where everybody puts their heads together among the business managers and say, we'll get to Clause 30 by the close of play on this particular day, and then we'll do the next section the [00:08:00] following day, and so it goes on.

That hasn't happened with this Bill. What you've got is a group of very determined opponents of the Bill, putting down lots and lots of amendments, and talking about them very extensively. And I got into some trouble with some people on Twitter by suggesting that this was a filibuster, but I'm gonna use the F word again. It's a filibuster.

Ruth Fox: Yes... So what then happens? Because if they can't get through to a Third Reading vote, I think it's important to not underestimate the degree to which in the House of Lords there is a lot of worry about where they now find themselves. A lot of peers on both sides of the debate concerned that they look to be challenging the primacy of the elected House, that it's gonna be damaging to the reputation of the House of Lords in the wider public, concern that people looking on at this who support assisted dying, and the polls suggests that there's a majority for that, will not understand all of these machinations. Why they're not listening to Parliament Matters, you might ask.

But for those that aren't, [00:09:00] won't understand what's happening and why a lot of the Peers, even amongst those who are very opposed to the Bill, are getting quite frustrated and quite angry at this small group of Peers who are in their view holding things up.

Mark D'Arcy: But at the same time, there's a huge inhibition in the House of Lords about starting to use processes that curtail their normal debate.

The House of Lords is very proud of being a self-regulating house, but part of self-regulation is having the self-discipline to get things done. And where some people decide to just keep on going, Peers will either have to bite a very unpleasant bullet and set a precedent for curtailing debate, or they'll have to find another way to address the problems around this Bill.

And I'm not quite sure what that would be, but the big stick that's now being waived is of course the Parliament Act.

Ruth Fox: Yeah. But before we come onto the Parliament Act, Mark, I think you should get off your chest because, listeners, he's been ranting about this for pretty much quite a bit of the day, you are really quite upset that journalists [00:10:00] in the last 24 hours have been calling the Parliament Act "arcane".

Mark D'Arcy: The Parliament Act is the process by which the House of Commons gets its way in the teeth of opposition from the Lords. It has been invoked, I think, seven times in its entire lifetime. The first Parliament Act was in 1911, so it is not a frequently used procedure, but it is not an arcane procedure. It is not a strange curiosity. It is not some magical artifact that has to be taken from an enchanted cavern, guarded by dragons in a Harry Potter novel. This is a part of parliamentary life, and Parliament operates to some extent under the shadow of the Parliament Act. It's a bit like nuclear deterrence.

You know it's there and people operate accordingly. It is the way the Commons gets its way. It is a vital prop of our constitution. And I find myself hawking back to the good old days when every schoolboy took O Level British Constitution and understood this mechanism, which obviously doesn't seem to be the case now.

Ruth Fox: Pre-dates me.

Mark D'Arcy: Shame on me. A school student.

Ruth Fox: Yes. In so far as [00:11:00] arcane means old, it's not even old, not in parliamentary terms, because in parliamentary terms it's quite a modern piece of legislation.

Matthew England: There are plenty of Commons standing orders and practices that date back well beyond the Parliament Act. The Second Reading itself, for instance, the idea of readings, and that's

Ruth Fox: 1400.

Matthew England: I think.

Ruth Fox: Yeah.

Matthew England: And if it means rarely used, if that's what people mean when they describe it as arcane or archaic, then the answer is that it should be rarely used, precisely because the trigger for the Parliament Act being used, which is the Lords rejecting Commons legislation, should also be rarely used.

Ruth Fox: Yes.

Mark D'Arcy: Well, having purged my soul of that, anyway, Ruth, talk us through what the Parliament Act does and how it does it.

Ruth Fox: Essentially, as Matthew says, it enables legislation to go onto the statute book without being passed by the House of Lords, if the Commons passes an identical Bill in two successive sessions.

So it's a way of overriding the objections of the House of Lords and sending a Bill to the King for Royal Assent without the agreement [00:12:00] of Peers.

Mark D'Arcy: And does it have to be a Government Bill sanctified by a manifesto process so that it's been put before the electorate?

Ruth Fox: No, it doesn't. It applies to Private Members' Bills.

It's never actually, I think Matthew, been used for a Private Member's Bill has it?

Matthew England: No, it never has.

Ruth Fox: But it does, you wanna go back to 1911, Mark, for this. In the debate on the Bill at that time, there was an explicit discussion about whether it should be restricted to Government Bills or not, and an MP called Alexander Thynne.

Mark D'Arcy: With a Y and two Ns.

Ruth Fox: Yeah, I'm not sure how you pronounce it. But anyway, he actually put an amendment down to restrict it to Government Bills and there was a division on that and the House of Commons rejected that. So they've explicitly, at the time, endorsed the idea that it would apply also to Bills brought by backbenchers, by private members.

So that is clear. And that is enshrined in section two of the 1911 Parliament Act. So we know it applies to Private Members' Bills. But the procedures by which that will happen are quite complicated.

Mark D'Arcy: It never [00:13:00] has been applied to a Private Member's Bill. That's not the same as it not applying. So what are the requirements? How does it work?

Ruth Fox: You have to send an identical Bill to the Lords in the second Session. So after the next State Opening, somebody, either an MP or the Government, could send the Bill to the Lords, but it has to be in the same form as Kim Leadbeater's Bill that left the House of Commons in June last year after it was approved at Third Reading and was sent off to the Lords.

Now, there are a couple of, if you like, caveats, carve outs to that in terms of what "identical" means. First one is that you can have drafting changes to the Bill to reflect the passage of time. So something like the fact that this is gonna obviously not be implemented for a year beyond what was initially anticipated.

Mark D'Arcy: So commencement dates and things like that.

Ruth Fox: Yeah. Things like that. So you can make those kinds of administrative drafting changes. And then there's a [00:14:00] second set of provisions where you can make amendments made in the House of Lords in the first Session. So Matthew, I dunno whether you want to extrapolate on what that could possibly mean.

Matthew England: It's not exactly entirely clear what it does mean. The main ambiguity being whether the word "made" covers amendments which are only agreed in Committee in the House of Lords in the first session. If by the end of this session, the House of Lords has gone through Committee Stage and agreed lots of drafting and technical changes to improve the Bill, but hasn't actually got to Report Stage or passed the Bill back to the House of Commons, can those amendments be included in the Bill as presented in the next Session? And if that's the case, then it improves things for getting the Bill passed in the next Session because they wouldn't have to worry about all of these technical and drafting errors that some of the opponents are and some of the proponents are worried about.

Ruth Fox: Yeah, so there is, Mark, I think quite an important thing that will have to be concluded, and I suspect that we may be entering the realms where advice will have to be given to the [00:15:00] Speaker by the Speaker's Counsel, his chief legal advisor about whether changes made at Committee, but not reported to the House after Committee and not approved at Third Reading and sent off as a message to the Commons, whether those count as Matthew says, as amendments made in the House of Lords. So a lot is gonna depend, I hate to say it, on what does the word, what is the meaning of the word, "made"?

Mark D'Arcy: Well that'll be fun. And if you think back to the early days of Speaker Lindsay Hoyle taking office, he did say that he would get into the habit of publishing the legal advice on tricky points like this, as partly a reaction to the John Bercow years when the rules seemed a little bit more fluid, he wanted to make sure that the legal advice underpinning his decisions was available.

So it may well be that we'll see the advice that will be given to Mr. Speaker.

Ruth Fox: I think that was in the case where he was overriding the Clerk's advice, so I'm not sure about that, but anyway, we'll see.

Mark D'Arcy: I took from what he was saying, that there was a sort of broader thing that he'd been more open to publishing his legal advice, but we shall see.

Ruth Fox: But there's [00:16:00] also this point about what does rejection of the Bill mean in terms of the Parliament Act? Because it may well be that the House of Lords doesn't formally reject this Bill in this Session. It may just run out of time, and that still falls within the purview of the Parliament Act. Is that right, Matthew?

Matthew England: That's right, yes. So if the House of Lords in the next Session rejects the Bill at Second Reading, which I think is unlikely given that they didn't do so this Session, then the Parliament Act, I think, comes into effect automatically at that point. That constitutes rejection. If the House otherwise fails to pass the Bill, because of what's happened in this Session, they go through the whole debating amendments at length process again, and by the end of the Session, the Bill hasn't been passed, then it's regarded as having been rejected at the end of the Session and is sent for Royal Assent as soon as the parliamentary Session ends.

Mark D'Arcy: And what happens when you talk about people invoking the Parliament Act, people tend to imagine that there's some kind of gigantic ceremony, where the Clerks in full regalia gather at midnight and sacrifice a small animal, [00:17:00] and then the Parliament Act is thus invoked.

But it's a bit more prosaic than that, isn't it? And I think the Speaker just signs on the dotted line somewhere and announces it to the house.

Matthew England: Yes. The Speaker signs a certificate that the requirements of the Parliament Act have been complied with, and effectively it's then automatic. There's no invocation or anything of that sort.

Ruth Fox: If the Government or the sponsor of the Bill for whatever reason had concerns about whether or not the Bill that they had, that was gonna be sent for Royal Assent, was fit for the statute book, hadn't got some potentially gaping holes or legal problems in it, can they stop it going to be Parliament Acted? You said it's automatic, but they could choose not to send it.

Matthew England: Yeah, it's automatic by default. So if by the end of the next Session it becomes clear that if nothing changes what's gonna be sent to the King is a totally unworkable Bill, then the Commons has the option to agree a motion that the Parliament Act not be used.

And in which case it wouldn't apply automatically at the end of the Session.

Ruth Fox: So that's potentially, if this were to be taken forward by a [00:18:00] back bencher as a Private Member's Bill and the amendments weren't made that are thought necessary, because we know that Lord Falconer's amongst his list of amendments that he's got, quite a number of them are gonna come from what the Government has asked for, the government lawyers have asked for, improving and drafting changes to make the Bill workable and fit for the statute book. At that point, you could potentially see a scenario in which actually the Government says, hang on a minute, there are still some real problems with this. We can't proceed.

Mark D'Arcy: That's one of the difficulties, isn't it? Because everybody's acknowledged, including the promoters of the Bill that changes to the Bill as it left the House of Commons need to be made. What happens then? And as it turns out that there is a get out clause available, a mechanism by which the Commons can suggest changes.

Ruth Fox: Suggestions. Suggestions. Suggested amendments is what they call the process. There is this, as you say, this get out clause of provisions that can be suggested to the House of Lords. It's not a formal legislative stage. [00:19:00] And, Matthew, I think I'm right in saying it's typically, when this has happened in the past, it's typically happened after the Second Reading debate. But in the Commons it's quite tricky because they cannot really have a Committee Stage and a Report Stage because you can't amend the legislative text of the Bill beyond those minor changes that we've talked about.

Matthew England: Yeah, so the Parliament Act, as you say, requires an identical Bill to be sent from the House of Commons to the House of Lords and as a consequence of that, there isn't really much point in having the Committee and Report Stages because the only purposes of those stages are to change the Bill. And if you have those stages, then you're not gonna end up sending the same Bill.

So with the Parliament Act in the past, the practice has been for Committee and Report Stages to be set aside by a motion put forward by the Government. And the question is whether the Government would be forthcoming in either putting forward that motion or making time for someone else putting forward that motion.

Then as well as dispensing with Committee and Report Stage, you have this suggested amendments process, which takes [00:20:00] place outside the legislative process, although it has to happen between Second and Third Reading of the Bill in the House of Commons, where the House of Commons can, as you say, suggest amendments to the House of Lords.

And when the identical Bill goes to the House of Lords, the suggested amendments are sent alongside it.

Mark D'Arcy: So it's a sort of codicil to the Bill if you like.

Ruth Fox: And the process for agreeing those, in a sense, they're gonna have to invent this to a certain degree, particularly if the option is to take this forward as a Private Member's Bill in the next Session, which has never happened before.

And as I understand it, every amendment that might be proposed has to be enshrined in its own motion, but they might be debated in groups, to cut the amount of time necessary. What we are not clear about at the moment is whether or not you'd have to have a vote on every one of those suggested changes or every one of those motions, or whether, again, a bit like the of Ways and Means motions for the Budget and so on, you can vote on them en bloc, [00:21:00] some of them on the nod, and just divide on a few of them. I suspect it's the latter, but we've had a bit of conflicting advice from current and former clerks on this.

Mark D'Arcy: This isn't done very often. I think the last time this particular procedure was invoked was back in 2004 for the Hunting Act, which in a slightly similar story, had been batted back by the House of Lords a couple of times.

And I suppose there won't be many people in the House who can even remember the precedents on this.

Matthew England: The idea of multiple suggested amendments or a large number of suggested amendments being sent from the Commons to the Lords would be pretty unprecedented and we'd have to start really from scratch.

With the Hunting Bill, the House of Commons did send one suggested amendment. So the, question of whether you can put suggested amendments...

Mark D'Arcy: The bakers dozen or so.

Matthew England: Whether you can put them in a group to the House, it didn't really arise. I think the most sensible thing to do this time around would be to have a separate day, after Second Reading where the suggested amendments are considered by the House of Commons. And then at the end of that debate they vote on [00:22:00] all of the suggested amendments that are put.

Mark D'Arcy: And possibly stick the Third Reading right at the end, because there really won't be that much to say. Will there?

Matthew England: Yes.

Ruth Fox: And I can't help thinking that Lord Falconer's list of suggested changes that he's issued this week might well be a list of suggested amendments.

Mark D'Arcy: Looks like the first draft. Doesn't it?

Ruth Fox: Yes. But it does imply that there's gonna have to be some creative thinking about how that's all gonna work at that stage.

We also know there's gonna have to be another Money motion for the Bill, but I think that will be relatively straightforward to ensure that there's sort of support for the funding of the Bill. As you say, Third Reading, likely to take place quickly after the suggested amendment stage, and then it's off to the Lords.

So what happens when it gets to the Lords then?

Mark D'Arcy: Are we then going to be looking at an action replay of what happened the last time, which is another go slow. What I think you'll see here is almost the classic Lords division between hedges and ditches. People who will continue their absolutely unstinting opposition to the Bill on the one hand. And people who think, we [00:23:00] don't much like it, but maybe the time has come to compromise and who might perhaps accept the suggested amendments and get the Bill to the statute book in a good form. And I suspect that you will see a group of diehard opponents to this Bill, if I can use that term in this context, continuing the fight, but perhaps possibly being overridden in some way by Peers who just think the time has come. The will of the elected House is clear. We've gotta play ball on this.

Matthew England: The question to some extent hinges on how those sort of diehard opponents think about what the Commons will do at the end of the Session. Because if the opponents of the Bill do what they've done this Session and the Bill doesn't pass, then what happens is the version of the Bill that the House of Commons agreed this Session is what would go onto the statute book.

And if those opponents think that the House of Commons is willing to see that Bill go onto the statute book, then they might be less willing to be as delaying as they've been this Session because the risk is that they get a worse Bill out at the end of it.

Ruth Fox: So there's a [00:24:00] certain amount of parliamentary poker or a sort of game of bluff here isn't there.

To what extent if the Bill doesn't get through Third Reading and sent back to the Commons in the next Session, so it runs out of time or it's outright rejected, the Commons have got to go with the Bill that they sent up to the Lords. So the suggested package of amendments basically falls by the wayside? Is that right?

Mark D'Arcy: I suppose in the end, it would fall by the wayside in terms of that Bill, but I suppose it's entirely possible that the Commons could follow it up by quickly passing a kind of Assisted Dying (Amendment) Bill of some kind that embodied those amendments. So you could try and stick that through very quickly.

Matthew England: It might not come to that. The suggested amendments process is a sort of separate procedure from the rest of the standard legislative process. So it may be that we see all of these delays at Committee Stage again or Report Stage, and the Bill doesn't end up getting through the House of Lords.

But the suggested amendments that the House of Commons [00:25:00] put to the House of Lords when the Hunting Bill was going through were put at the end of Second Reading. And if by the end of the next Session, the House of Lords hasn't passed the Bill, but has agreed the suggested amendments, then the version of the Bill that goes to Royal Assent is the version of the Bill that was passed in 2025 with those suggested amendments.

So whether the House of Lords is willing to agree those suggested amendments becomes the key question in whether the Bill as enacted is workable.

Mark D'Arcy: But it's not as susceptible to delaying tactics.

Matthew England: Yes, indeed.

Mark D'Arcy: Yeah. It's quite a parliamentary high noon moment, isn't it, when that's put to the House of Lords.

And a lot will depend on, if you like, the psychological state of their Lordships at that point. Whether they are saying to themselves, we now have to bow to the will of the elected House, or whether they're saying we are still the backstop against really bad legislation. We think this is really bad legislation. We are not gonna let it through, and we are going to see whether the House of Commons blinks first.

Ruth Fox: It's not the House or the [00:26:00] entirety of the House, is it? It's just, it's a small number of Peers, probably no more than a dozen. If this comes back to them in the second Session, do they accept that they need to give way to the electoral primacy of the Commons. It's unclear.

Mark D'Arcy: The Peers who've been opposing this and putting down most of the amendments and debating at length are to be sure a small number.

But there has been no test of the actual numbers in the House of Lords. Most people think that there's probably a majority for the Bill in the House of Lords, but we don't know that. Because at no stage has there been a yes or no vote on anything really. The Bill went through Second Reading because Bills always go through Second Reading in the House of Lords. It's very rare to even attempt to stop them.

Ruth Fox: That's maybe where things might change perhaps in the next Session, that possibly the Peers would take a vote at Second Reading rather than waiting for Third Reading as they've done this time. Because, as you say, that has enabled the campaigners against the Bill to argue that there isn't the support there. It emboldened the opponents.

And what we're [00:27:00] effectively seeing is the kinds of procedural games we normally see in the Commons on a Private Member's Bill sitting Friday. The Commons, because they knew that there was a majority at Second Reading quite early on, you did see even amongst opponents of the Bill a kind of a respectful process, a determination to get it to a decision, to have a proper debate, to have a longer debate than they often have on, certainly Private Members' Bills and often Government Bills, but get it to a decision so that there was a clear outcome at Third Reading. We are not seeing that sort of mood in the Lords and I think this lack of a Second Reading vote is part of the problem.

Mark D'Arcy: It's a rather odd situation where the Commons behaved as the House of Lords normally does, and the House of Lords is behaving a bit more like the Commons actually does.

But let's pop back a step here and consider how it is, if this Bill doesn't survive this parliamentary Session, if it's delayed and falls at prorogation, how a second iteration of it gets to the [00:28:00] wicket in the next parliamentary Session after the King's Speech, because there are a number of routes that might be used to get a Bill through using the processes that we've just described. And the first of which I suppose is the easy one is just another Private Member's Bill picked up by another individual Member of Parliament, and that depends on the vagaries of who wins the ballot for debating time for the Private Member's Bill of their choice.

Ruth Fox: Yeah, it's unlikely to be Kim Leadbeater who brings that Bill forward because the chances of her coming out top of the ballot or even in the top 20 in the ballot for Private Members' Bills in a second Session is unlikely. The only time I can recall that happening is John McDonnell was incredibly lucky, came out the hat twice in two successive Sessions and ...

Mark D'Arcy: Could hardly believe his bad luck!

Ruth Fox: So you need to have an MP prepared to pick it up who comes top or near the top of the ballot, really. Realistically, top three, you could argue top seven, but I think realistically it needs to be probably the top three. [00:29:00]

Mark D'Arcy: So it's all in the laps of the gods of chance really at this point.

Ruth Fox: And first question is, what happens if nobody wants to take it on? Then you've gotta look at other options, which we'll come on to in a moment. Private Members' Bill ballot timewise, I think there are some issues to consider there. So the ballot usually takes place on the second Thursday of the new Session. And then the Bill has to be presented for First Reading, usually on the fifth, or sometimes it slips to the sixth, Wednesday of the Session, and then you have Second Reading on whatever the first Friday, usually the first Friday sitting that's allocated for Private Members' Bills when the government decides what those dates will be.

Mark D'Arcy: Which makes it basically extremely tight for the Bill to get a Second Reading debate or even day one of its Second Reading debate. If it goes to two days, it'd be very tight to get that to happen before the Summer recess, I think. Not impossible.

Ruth Fox: No, not impossible. I think they could get it on those, I dunno whether Matthew agrees with this, I think they could get it through these Commons stages by the Summer recess. I think the bigger question [00:30:00] is whether it can be sent to the House of Lords in time, for example, for it to have its Second Reading there before the Summer recess or not. And obviously you want it to get it to the Lords as soon as possible in order to provide the maximum amount of time for them to churn the wheels through Committee and Report Stage if that's what they're gonna do.

Seems to me that the bigger challenge is getting it into the Lords as soon as possible.

Matthew England: The main problem with using the Private Members' Bill ballot, or Private Members' Bills more generally, is that Government involvement would still be needed to some degree.

First to make sure that Committee and Report Stage don't occur. And second to set up this suggested amendments process. Both of those would probably need to involve the Government in some way, so the Government couldn't entirely wash its hands even if the Bill was going through the Private Members' Bill process.

Mark D'Arcy: But certainly in the last Session with the Kim Leadbeater Bill, there was a lot of kind of below the radar procedural assistance given to make sure that other Private Members' Bills didn't get in its way, for example, [00:31:00] to make sure that it was able to have a two day Report and Third Reading stage, so that wouldn't be unprecedented. It's happened already. It's just whether the will remains.

Ruth Fox: I think it's a bit more than that, because I think this would have to be above the radar as it were.

Mark D'Arcy: Yeah.

Ruth Fox: I think this would be tabling, as Matthew says, essentially a motion, a business motion to ensure that you could dispense with Committee and Report Stage and a motion for the, or motions, for the suggested amendment stage.

And I think the Government has typically had quite a bit of control over the suggested amendments process. So I think they'd have to put themselves a little bit more above the parapet, and that would inevitably raise questions about neutrality.

Mark D'Arcy: I suppose the first question with this is whether the Government continues to have the will to support this, or has decided that enough political and parliamentary capital has been expended, but that's a decision we'll have to wait for.

So suppose the Private Members' Bill ballot does not deliver someone willing to put their head above the parapet and sponsor a second iteration of the Kim Leadbeater Bill. What are the other options available here? [00:32:00]

Ruth Fox: I think, Mark, we've been considering this internally now for a while, and I think another option, not an easy one, is a presentation Bill, which is a form of Private Members' Bill, not the ballot route.

Kim Leadbeater could bring that forward herself. It wouldn't have priority for time in the way that Ballot Bills do on a sitting Friday that's been dedicated to Private Members' Bills. So the Government would have to intervene. They would have to make time for it. They'd have to ensure that it had some priority.

And again, as with the ballot Bill, they'd have to provide the other sort of procedural motions necessary to ensure that Committee and Report Stage don't happen and that there's this suggested amendment process.

Mark D'Arcy: So even more overt government assistance than we were talking about just now.

Ruth Fox: Yeah. And possibly in government time rather than a Friday.

Not impossible they could do it on a Friday, but possibly during the week.

Matthew England: But it perhaps offers a helpful middle ground between no or very little government involvement in the Private Members' Bill ballot process and all of the problems that [00:33:00] come from that process. And lots of Government involvement in the third of our options, which is the government just straight up adopts the Bill and takes it forward as a Government Bill.

Ruth Fox: Which of course if you go back to 1911 is what ministers, at the time, when they discussed this question of should the Parliament Act apply to Private Members' Bills, they assumed that the Private Members' Bill in the second Session would be adopted by the Government and that it would be ministers taking it forward. But it doesn't have to be. So as Matthew says, there is this option of having the Government just take it over.

Could the government maintain neutrality?

Matthew England: There is not an exact precedent, but there is precedent of the Government standing at the despatch box to put forward Bills on which it's neutral.

And this has happened indeed with Acts that have been passed under the Parliament Acts. So the Hunting Bill and the War Crimes Bill, both were free votes on which the government was neutral, and I think they [00:34:00] demonstrate that the Government can shepherd a Bill that it's neutral on through the House of Commons.

Ruth Fox: But a challenge is that a minister would have to be the person at the despatch box introducing the Bill, answering questions on it, in the House of Lords in particular. They'd be the one fronting the Bill, whereas at the moment it's Kim Leadbeater and Lord Falconer.

Matthew England: You might make the point that the same Bill has already gone through the House of Commons and Kim Leadbeater has been the one answering those questions and the purpose of a second iteration of the legislative process in the next Session would not be to repeat the process, repeat the scrutiny, ask the same questions of the sponsor of the Bill, it wouldn't be to repeat all of those things. So it wouldn't need to be as substantive answers to as substantive questions.

Ruth Fox: Certainly not in the Commons, but possibly more so in the Lords.

Matthew England: Possibly.

Mark D'Arcy: And thinking back to the 2004 Hunting Bill, that the process there was I think eventually taken over by the Government. So it may be that the result of the Government taking over a Bill is that they produce a slightly different version to the contents of [00:35:00] the sort of Leadbeater-Falconer Bill that we've got in front of us at the moment.

Ruth Fox: But then you're not Parliament Act-ing it are you, then you're not, you're taking it forward as a separate Bill and you run into the difficulties potentially in the Lords again. And it's Groundhog Day, albeit on a slightly different Bill.

And I think the Government's position, there are two things that come into play here in terms of its willingness to take this over. And one is a political question and sort of a willingness to expend political capital. And the other is a constitutional question.

On the constitutional issue, the primacy of the elected House is being questioned in effect by the House of Lords if the Bill doesn't go through. And the Parliament Act is the way in which the primacy of the elected House is protected and preserved. The Commons should have a choice about whether it wants to protect its primacy. And if the only way for the House of Commons to assert its primacy is by the Government [00:36:00] intervening, then you could argue that constitutionally, it's got an obligation to do so, if that's the wishes of the House of Commons.

There's then a separate question, which is the political capital question. A lot of these decisions are gonna have to be made very quickly. They'll already be considering it clearly, but gonna have to be made quite quickly at the start of the new Session towards the end of May, beginning of June.

Questions, if it's not gonna be a ballot Bill, if it could be a presentation Bill, if not that, then there'd be no option other than a Government Bill.

We could be depending upon the local election results, but we could be in a state of political flux, potentially crisis, if we're thrown into a scenario in which the Prime Minister is facing a leadership election.

Mark D'Arcy: Imagine a situation where you start the mark two version of this Bill in the House of Commons with the full support of Sir Keir Starmer.

But by the time you come to halfway through moment in the process, you've actually got Prime Minister Wes Streeting or Prime Minister Shabana Mahmood, who are both opposed to the [00:37:00] principle of an assisted dying Bill. What then?

Ruth Fox: Yeah,

Mark D'Arcy: Very interesting question, because if there's musical chairs going on in the Government, you could end up with everybody playing a rather different tune, to mangle my metaphors horribly.

Ruth Fox: Yeah, the politics is also about the views of the MPs themselves. Are they losing patience with this? It is taking up a lot of bandwidth. It's taking up a lot of time in the House of Lords. Prospects of Peers in the House of Lords having to spend even more Fridays, lots more time on this in the next Session.

MPs, who are just frustrated that it's distracting attention from their core messaging and the arguments about cost of living and the economy and so on that they want to focus on. Is this getting in the way? Is this the legacy that they want, for the Labour Government. Now, for Keir Starmer, it might well be. He was former Director of Public Prosecutions who had concerns about this issue for many years. But as you say, for other potential Prime Ministers, it might not be.

Matthew England: Keir. Starmer may be looking back to [00:38:00] the Harold Wilson governments, which you might say are best remembered for Private Members' Bill projects for which the Government wasn't entirely responsible.

Mark D'Arcy: But if we are conjuring up the spirit of Harold Wilson, the other thing that Harold Wilson was famous for doing was setting up Royal Commissions into difficult issues. If the government...

Ruth Fox: What a segue!

Mark D'Arcy: You've gotta admire that! If the Government was taking the view that this is actually becoming an extremely difficult and toxic issue, let's set up a Royal Commission of suitable Freudian authority figures away, to find a way through it, and oh, if they happen to report just after the next general election, oh blast, what a pity, nevermind.

Matthew England: Yeah, and unfortunately, aside from all of the issues that would come about with the composition of such a Commission, it wouldn't solve the principal issue of whether a Lords filibuster should be able to kill this issue in principle. And if the Royal Commission ended up recommending another assisted dying bill, would this thing simply just happen again? And I think you've got some MPs in the House of Commons who [00:39:00] were opposed to the Bill, like Ed Davey, who think that the principle at stake here is significant enough to say that the Commons should dig its heels in.

Ruth Fox: The primacy of the elected House.

Matthew England: Yes.

Ruth Fox: I mean Royal Commissions have traditionally been a good way of kicking things into the long grass, or as you suggest into the next Parliament in this case. There's certainly briefing going on about this, because I've spoken to a number of journalists over the last sort of 48 hours, and this is clearly being briefed by somebody in the process as a possible solution.

But as Matthew says, it takes the heat out of the politics in terms of the immediacy of the issue, but it doesn't solve the fundamental problem of the House of Lords could do this again, or a select group of Peers in the House of Lords could do this again as dedicated opponents of assisted dying to whatever Bill emerges from a Royal Commission.

Mark D'Arcy: That's certainly true, but I think if the dominant emotion amongst the government, ministers, business managers, et cetera, is make this go away, then that's a way to make it [00:40:00] go away and get on with, as you say, their core messaging on things like cost of living.

Ruth Fox: Yeah, we don't know, do we, at this stage, so we will have to see how things emerge over the next few weeks. I don't know. If you had to take a bet, it seems very unlikely that the Bill is going to get through, this Session in the House of Lords. If, and it's a big if, it was brought through in the next Session, you think it gets Parliament Act-ed? Is this a threat, a bluff?

Matthew England: To me, the most likely outcome is that it does get Parliament Acted, but when it gets to the House of Lords, it will be somewhat infeasible to repeat the same process over again. And some kind of compromise is reached in the second Session where an amended form of the current Bill is agreed by both Houses and goes for Royal Assent.

I don't think the Parliament Act will get used, but I think it will leave the Commons in a Parliament Act compatible form.

Mark D'Arcy: The big stick will be waived.

Matthew England: Yes, but not actually struck.

Mark D'Arcy: The thud of leather on Peer. But Parliament [00:41:00] Act aside, Lord Falconer doesn't seem to have entirely given up hope on that point about getting it through the Lords.

He's now produced this indicative list of amendments that he would like to see Peers engage with to try and speed the Bill through, even at this late date. Let's talk through some of those because he's got a list of subject headings, Matthew.

Matthew England: Yes. a few months ago when the Bill first got to the House of Lords, we at the Hansard Society produced a briefing that was centered on the delegated powers in the Bill. So the powers that the Bill would grant to ministers to make regulations on the way that the Bill would come into operation in practice. Some committees of the House of Lords, the Delegated Powers Committee and the Constitution Committee made similar points saying that there was too much power given to ministers to decide how this Bill was actually gonna operate.

And much of Lord Falconer's letter to Peers detailing some amendments that he's suggesting should be added to the Bill are concerned with the delegated powers that are granted to ministers. So to take [00:42:00] probably the most controversial example, the Bill as it stands grants to ministers the power to specify in regulations how assisted dying will be provided through, for example, the NHS. And he's got some amendments to that provision to flesh it out a bit. So specifying on the face of the Bill that the NHS could commission assisted dying.

But also one of the most concerning parts of the original power was that the power could have been used to amend the founding legislation of the NHS. And Lord Falconer has introduced a rare form of parliamentary scrutiny procedure for regulations which amend certain kinds of legislation using that power. So something called the enhanced affirmative procedure, where basically a regulation would have to be laid before Parliament and then scrutinised for 28 days, and then it would have to be laid again after some changes had been made possibly.

Ruth Fox: And if this happens, I'm gonna have to amend my very complex table of all the enhanced scrutiny procedures for delegated [00:43:00] legislation.

Mark D'Arcy: What a labour of love for you.

Ruth Fox: My hair will set on fire.

Matthew England: The one thing Parliament does not need is more strengthened scrutiny procedures.

Ruth Fox: Yes. So this just adds to the complexity of how Statutory Instruments and Orders in Council and so on are scrutinised, but you can see why he's doing it. And this is always the response, isn't it, in the House of Lords to powers, extensive powers delegated to ministers, broad powers, Henry VIII powers, let's stick an enhanced scrutiny procedure on it. So not entirely a surprise.

Mark D'Arcy: And so reinvent the wheel every time.

Ruth Fox: Yeah, but I suspect we'll be pouring over those proposed changes in more detail and quite possibly having an updated briefing on it. So look out for that in due course.

Mark D'Arcy: And he's also dealt with some of the issues that have been raised on things like, for example, the treatment of people with eating disorders within this.

And what would happen for people who were dying because of anorexia, for example, within the terms of the Bill, who've got six months to live. Could you then claim assisted dying? So there's a whole range of amendments he's engaging in. Is it too [00:44:00] little, too late, though because, a lot of his critics already murmuring that it's a bit of a sop? Rather than a genuine engagement with their concerns.

Matthew England: I think the time left in the House of Lords is so little that it's not feasible for all of these amendments to be made and for the Bill to pass through the House of Lords and then go back to the Commons. It just, it doesn't seem feasible to do it in the time that's remaining.

I think you can interpret the amendments that Lord Falconer has put forward as an indication of the kind of suggested amendments he would put forward under the Parliament Act.

Ruth Fox: Yeah. Unless there is a very significant change of heart and a 180 degree u-turn by this dedicated group of Peers who oppose the Bill in principle as much as in practice, they're not gonna get to the stages that they need to adopt these amendments in time.

Mark D'Arcy: And so the wheel turns, and I fear, Ruth, that this series of special podcasts which we thought might be quite time limited may be going into its second, possibly even its third, year. But it does look as if some of the [00:45:00] scenarios we've been discussing in this edition could well come to pass after the King's Speech if the Bill, as we now all expect, is talked out effectively and never gets to become law in this parliamentary Session.

Ruth Fox: Yeah, we may revisit it in a couple of weeks when we know what the reaction of Peers has been to Lord Falconer's letter. But in the meantime, we'll see you next week.

Mark D'Arcy: Watch this space and thanks very much to you, Matthew, for joining us today on the pod..

Matthew England: Thanks for having me.

Ruth Fox: Cheers, Matt.

Intro: Parliament Matters is produced by the Hansard Society and supported by the Joseph Rowntree Charitable Trust. For more information, visit hansardsociety.org.uk/pm or find us on social media at Hansard Society.

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