Hansard Society

• The assisted dying bill: A guide to the legislative process in the House of Lords

• The assisted dying bill: Is the number of Lords amendments a parliamentary record?

• The assisted dying bill: How could the Parliament Act be used? - Parliament Matters podcast, Episode 128

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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 special series of podcasts, tracing the progress of the Terminally Ill Adults (End of Life) Bill, the bill that would legalise assisted dying in England and Wales, and we are delighted to be joined on the pod today by Mark Harper, Lord Harper, one of the peers involved in the heavy resistance encountered by the Bill in the House of Lords.

And Mark, first of all, welcome to the pod.

Mark Harper: Thank you.

Mark D'Arcy: You've won, haven't you? It's been announced now that there isn't going to be any more time provided for discussion of the bill in the House at all, [00:01:00] beyond what's already been allocated. Progress on debating the bill has been so slow that it is quite clear that the bill is not going to clear its committee stage, let alone get actually voted on at any stage.

So you've won, you've stopped the bill.

Mark Harper: Look, first of all, I should say that I've been very clear from when we had second reading of the debate, I'm against assisted suicide in principle, but I've also been very clear that this legislation was going through Parliament, if the bill was gonna get on the statute book, it was really important that it properly safeguarded disabled and vulnerable people, and that's not just the view, despite what is said by those proposing the bill, that's not just a view of a small number of Peers. The Royal College of Physicians, the Royal College of Psychiatrists, Disability Rights UK, the Government Suicide Prevention Advisor, British Association of Social Workers, all of those organisations, many of them are neutral on the principle, but they all think this bill is not in a fit state to pass, it does not properly safeguard vulnerable people, all of [00:02:00] them. And I think organisations like that think that people who are proponents of the bill should just take a step back and go, actually, perhaps our critics have a point and it needs a bit of work.

So that's what we've been doing and the amendments that have been tabled reflect those concerns and those people criticising the progress of the bill, I think should just reflect that if the people proposing the bill had listened and accepted that perhaps the people criticising the bill had a point and had accepted some of those proposals, we might have made faster progress, but when I've listened to the debate, I've been in the House for every minute of the debates, generally you get a very good debate with very experienced people who know what they're talking about, raising concerns, and then when Lord Falconer, who's the leader of the pro Bill people in the Lords responds, he basically says, we've had a good debate, here are all the reasons why the people with these concerns are wrong [00:03:00] and he doesn't accept any of them, and that's where we get to. And you're not gonna make much progress like that. It's not what ministers do when they've got legislation. They do try to reflect a bit on the concerns and I just think if a different approach had been taken, then I think we might have made faster progress. So I think they have got to look themselves in the mirror when they're throwing criticisms about and reflect that the bill is in terrible shape. There are lots of peers who support the principle of assisted suicide, but think the bill is in terrible shape and shouldn't pass in its current form.

Mark D'Arcy: But do you accept that on current trends, there may be a few more days of debate to go, but this bill is now not gonna pass in this session.

Mark Harper: if you just extrapolate, that's what it looks like. But I would say the responsibility for that is largely with the proposers of the bill. It spent a long time being debated in the House of Commons, but lots of the known issues with the bill weren't dealt with.

Just one example, it was very clear there was a big issue about people with anorexia that the bill as originally drafted [00:04:00] would've left them open to being captured by its provisions. Heavily opposed by people who are experienced with that disease. But it wasn't dealt with at any point in the House of Commons and we had to deal with in the House of Lords.

And in the end there was an amendment to be fair, which Lord for has supported, which had cross party support, which was put into Bill that could have been done. Months ago, and if it had been done months ago and the House of Commons had dealt with more of these issues and had sent us a bill that was in better shape, then it might have made faster progress.

Ruth Fox: This bill though I mean it's what, 50 odd pages.

Mark Harper: It's a very long Private Member's Bill. Most Private Members' Bills are a few clauses. This is massive for a Private Members' Bill.

Ruth Fox: It is for a Private Member's Bill, but it's also had more time in the Commons. It's getting a huge amount of time for a Private Member's bill, or indeed for a government bill, in the House of Lords.

It's had more amendments tabled to it than any bill in recent history, government or Private Member's Bill. At the current pace, if the session wasn't gonna end and the committee was [00:05:00] gonna continue and the government was making more time for it on Fridays, it would have more committee stage scrutiny than any bill in history as far as we can tell. Several dozen days. Can you honestly say it's the worst bill drafted ever that justifies that level of approach?

Mark Harper: I wouldn't say it was the worst bill that's ever been drafted ever. But look it's very big for a private member's bill. It's also very significant in what it does. So it makes a fundamental change to how society views vulnerable people.

One of the reasons disabled organisations, there's not a single organization of or for disabled people that supports this bill because they feel what it does is, and I think this too, is it changes the starting point of society, where you try and help people live well, rather than think about ways for them to die more quickly.

And the other thing is it makes a fundamental change to the National Health Service. And Simon Stevens, the former NHS chief executive, who also [00:06:00] opposes the legislation, has made that point that it will fundamentally alter the point of the NHS. You'll have to change the constitution of the NHS. And it also runs up against that challenge in the NHS about resources and about whether you have sufficient palliative care available.

So given the scale of what it does, that's very significant. But I think the problem is, and this is where I'd be very fair to the proposers of the bill, both Kim Leadbeater and Charlie Falconer, this bill shouldn't be a Private Member's Bill. Something of this scale with the amount of operational impact that it has across both the court system or however you do the tribunals and the NHS and the significant impact it has across government, it should be a government bill. If Keir Starmer thinks this is incredibly important, apparently he does. It should have been a government bill. It should have been in their manifesto. And it could have still been a free vote on the subject. But what would've then happened, Ruth, coming back to your point, is [00:07:00] it would've had proper consultation. You'd have had,

Ruth Fox: Would it though? Because there's lots of government bills we could go through that don't get proper consultation.

Mark Harper: I think on something like this, I think it would've done because I think otherwise it would've run into the same issues again. You'd have also had proper cross government work, which would've ironed out lots of the issues, both from a devolution perspective between England and Wales, and about a lot of the operational issues, and they would've been dealt with in advance. I think expecting a backbench MP and a backbench peer to do this, albeit they have had quite a lot of technical support from the government, I just think was always going to cause huge problems. And indeed it has.

Ruth Fox: So if this had been brought as a government bill on a free vote, would your position be different? Would you be approaching it in the same way that you are now?

Mark Harper: I was very clear at the beginning of this discussion. I don't agree with assisted suicide in principle. Lots of people come to this issue from their personal experience. That's informed for me for the years I spent shadowing the [00:08:00] disability brief and being the Minister for disabled people and talking to people with disabilities. They're very clear. I think this is a bill which fundamentally changes lots of the ways we think about how we support people. And the proposer of the bill Charlie Falconer has been very clear in the debate in the House of Lords, although the trigger to getting assisted suicide is having a terminal illness, he's very relaxed if the reason why you want to end your life is that you are poor or you are lonely, or you have some other thing that makes your life terrible. I think you should try and fix that rather than say to you would you rather have someone help you kill yourself.

And I just think there's a fundamental disagreement there. So if it was a government bill, I still wouldn't be in favour of it. But if you had a bill which had some of these safeguards in and protected vulnerable people, I think you'd find there would be some people that therefore weren't opposing it, but also people who are fighting it very hard because they think it's going to expose all sorts [00:09:00] of vulnerable people.

You've had lots of people on the Labour benches worried about homeless people. Some of the bishops being worried about people who are in prison, people who are disabled. There's a range of vulnerable people. Victims of domestic abuse. That's one of the things Luciana Berger's very concerned about.

So I think you'd have found that if lots of those issues have been dealt with, there will be certainly some people who would stop being opponents of the bill and they probably wouldn't be supporters of it. But they would be much less opposed to it than they are at the moment.

Ruth Fox: But the problem with where we're at at the moment is that we can't even get to the stage of trying to improve the bill.

Lord Falconer, he's having to negotiate his way through this. He's got limited resources for, doing it. A lot of the amendments that he's tabled, one presumes, quite a lot of them from the government, have been tabled quite late on in the process, but at the end of the day, some of those amendments are designed to fix some of the problems that people have with the bill, and we can't get to votes on those changes.

And that's the problem. If you accept that the House of Commons has, as the [00:10:00] elected House has voted for this bill and supported it, it's now come to the Lords and the Lords role as a revising chamber, and we are not getting to the point of being able to make improvements to address the problems that you highlight.

Mark Harper: Look, there's a couple of things. First of all, a lot of these things have been proposed by Lord Falconer very late. So for example, there were two Lords select committee reports that were scathing. I think that's a fair characterization. Now, when I was a minister, I was expected to have responded to those sorts of select committees before you even started committee stage. It was months down the line before we saw his response to those, and it wasn't accepting most of them. It was slightly grudging and in some cases not accepting them and in some cases trying to row back on things that had happened in the Commons. So I think there's an issue there also.

You can't expect to just ignore all the things that are wrong with the bill, just to rush to get to the next stage. Part of the issue here, there's a lot wrong with it, I've [00:11:00] highlighted issues around how it's gonna interact between England and Wales. It's been informed by my experience as having been a constituency MP on the border where cross border healthcare was a massive issue, and if it's not properly dealt with, that's just one small example, but there's tons of them through the bill. And the House of Commons. Point is I make two points. First of all, the House of Commons, a number of MPs, both on the record explicitly and some privately accepted the bill wasn't in very good shape and were basically throwing it over to us to fix all the stuff that they hadn't fixed, which I'm personally, I don't really think that's what Parliament should do.

Ruth Fox: It's pretty irresponsible.

Mark D'Arcy: That happens all the time though, doesn't it, to be fair?

Mark Harper: Yes, but then they shouldn't complain when we're doing the work that needs to be done.

Mark D'Arcy: But, are you doing the work? In the sense there were in a lot of very long speeches and days of committee consideration, but you've never got to the point of report stage where you actually start doing the fixing. You've discussed how you might fix it. You haven't got to actual fixing yet.

You see [00:12:00] my problem with this is not just that the butter's not melting in your mouth. It's freezing solid as you talk about this as a deliberative process. This is more than that, isn't it? This is a deliberate attempt to spin out committee stage and so the whole thing's defeated.

Mark Harper: No. Because look, what's supposed to happen in the Lords, the normal process is a committee stage, you table amendments, you're either probing the reasons for things or you are putting forward potential solutions, and then the proposer of the bill, who's normally the minister, would respond and give an indication about what they might do at a later stage, and sometimes they'll just go, no, it's fine. Sometimes they'll go, you've got a point, we'll bring back something at Report Stage. Part of the problem is on each of the sections where we've been talking about some really quite serious issues about how you protect vulnerable people, how you stop victims of domestic abuse, how you protect against coercion. We are not getting the proposers of the bill going, do you know you have a point, we'll actually look at bringing something back. You get, actually, the bill's fine, the things you're worrying about, you don't need to worry about. If that's the approach, [00:13:00] you have to keep probing on the areas and you're not able to get through anything quickly. Because the proposers of the bill don't really accept there's anything wrong with it. And huge numbers of people said, not just peers, but all of those groups that I mentioned who are gonna have to implement this, they all think there's a lot wrong with this bill, and if the people proposing it aren't prepared to fix any of it, it isn't gonna go very fast.

And on the House of Commons point, we are a revising chamber, but it is our job to ask the House of Commons to think again. Now, in the end, if the House of Commons thinks again, it has provisions where it can get its own way, but it would be irresponsible if we thought a piece of legislation in front of us was going to damage vulnerable and disabled people potentially to the extent that they would lose their lives, it would be irresponsible if we were to allow that to pass. And if you look at the polling, that is what the public think. The public think that it is our role to say this legislation is in terrible shape, it'll damage vulnerable people, you should think again. And then it's over to the Commons [00:14:00] to think again. But our system isn't one where just 'cause they voted for something once it automatically becomes law. That isn't how our Parliament works.

Mark D'Arcy: Is there any fix that could be added to this bill, any set of amendments that would make it acceptable to you?

Mark Harper: No, I've been very clear about that. I don't agree with suicide in principle.

Mark D'Arcy: I think that's true of a lot of your colleagues who are engaged in this as well, isn't it? That there is no way, no form this bill could be adapted to, that would make it acceptable to them.

Mark Harper: That's true of some people. But if you look at the number of people involved in this, there's been, I think, 171 Peers have spoken in debates on this bill. I think over 60 peers have tabled amendments. I'll challenge some of the things you've said on previous weeks about filibustering and speech length. The average length of a speech at committee stage has been less than five minutes. I don't think in anyone's book that's filibustering and I would challenge anybody who's listened to the debate to say, which subjects have we been talking about that they think are not right and not serious and not appropriate. You've got people like Illora [00:15:00] Finlay, who's a professor of palliative care, you've got people like Elizabeth Butler-Sloss, who was a senior judge in

Mark D'Arcy: But she has in terms complained about people making long repetitive speeches.

Ruth Fox: Multiple speeches saying the same thing that previous speakers have said, I think is, Baroness Butler-Sloss' concern.

Mark Harper: But the point is, I'm saying you've got people who've got real experience in this issue and no one has stood up, Lord Falconer has not stood up and said that people haven't made serious points. He just hasn't agreed with them about anything. And I'd say I challenge anybody to look at those debates and say, we haven't been raising serious concerns with the bill that are, by the way, shared by, there's this argument that somehow is a few people are against it. I said, I can give you a huge list of outside organisations, disability groups, all of the royal colleges, all of them think this bill shouldn't pass in its current form. They don't take a position on the principle. All of them are opposed to it in its current form. They all think the bill is in terrible shape and needs a lot of work for it not to [00:16:00] damage the interest of vulnerable people in our country. And we are trying to improve it. And that is ultimately I think our job.

Ruth Fox: Just to tackle this issue of a filibuster, Mark, because I think it's fair to say I'm getting quite a lot of flack from all sides on this question. Those who think I'm too soft on people like you, Mark, that you are filibustering and others who think I'm not robust enough in, standing up saying, no, there aren't. A filibuster, I think we talked about this last time, Mark, that you're absolute if it walks like a duck, quacks like a duck, it's a filibuster. When people think about a filibuster, they just think about long speeches. Peers and MPs droning on to take time up in the House of Lords. And we talked about this on one of our first podcasts with Sir David Beamish, former Clerk of the Parliaments. There are multiple ways in the House of Lords you can effectively engineer a filibuster. You can table a lot of amendments. We've clearly got that. You can do a lot of de-grouping. We've got about 89 groups. I don't think there's been an awful lot of de-grouping..

Mark Harper: No. There has been very little.

Ruth Fox: There are a lot of groups. There are a lot of groups reflecting the amendments.

Mark Harper: But there's a lot because there are a lot of amendments and in fact some of the groups, the [00:17:00] reason why some of the groups, the debate on them takes a long time, is because there are a huge number of amendments. Last week we only did two and a half groups, but some of the groups had a huge number of amendments in them covering a vast range of issues on what's called the Voluntary Assisted Dying Commissioner and the way the panels are gonna work. But these are the people who are going to be gatekeeping whether or not someone ends their life. Those are quite serious issues about, who are those people? How are you going to do it? What's the work they're going to do? Is it effectively a rubber stamp or is it a proper thing? So I would challenge anybody who's throwing this about to just go and look at the debates and decide whether they think those are serious debates about the issues.

And I sat through all of them, and there hasn't been a lot of repetition. It's probably true that some people have made some of the same points. That's inevitable. But there hasn't been a lot of, I certainly try to. When I speak, I try to raise new points that haven't been raised before where I think actually the [00:18:00] sponsor of the bill does need to look at what's happened rather than just repeating the same arguments other people have made.

Mark D'Arcy: I'm not arguing that these are time-wasting speeches, and the kind of thing you see in films about the US Senate where someone sits there for 18 hours reading out recipes for cupcakes or something just to use up the time. It's clearly not that. These are clearly substantive speeches, but I just find myself thinking that a group of people figured out that they could stop this bill by doing what they're doing now, using up the unprecedented amount of time that's already been allocated for this bill, and at the end of the parliamentary session, the bill will fall because it won't even probably have progressed as far as report stage.

Ruth Fox: And I think that's then my next question to you, Mark, if, and it's a big if, but if the response in the Commons is, we are the elected House, we voted for this bill, we want it to go through and get to the statute book, somebody in the ballot comes reasonably high and wants to adopt it, whether that's Kim or unlikely, but, another MP, they want to take it [00:19:00] through in identical form in order to apply the Parliament Act, at the end of the process. Are you concerned that the bill will end up coming back in form that it left the Commons? No amendments, no revisions, with all the holes and concerns and policy problems that you've seen, and that it ends up getting forced through over the Lords. And what we end up with is the worst of all worlds from your perspective. We've got the Act on the statute book, but with all the problems in it.

Mark Harper: Look, I think one of the things that MPs will have to think about if the bill doesn't get to the end of the process in this session of Parliament is whether they're prepared to do that. You're right, in the end the House of Commons can get its way, but the proposers of the bill have accepted that it needs amendment. Charlie Falconer, I think, has tabled 69 amendments to it. So he's accepted that the present drafting of the bill isn't good enough. So if somebody wants to pick up a bill that the people who [00:20:00] propose it accept is not actually fit for purpose, which is opposed by all of the Royal Colleges, all disability organisations in the country, the Government Suicide Prevention Advisor, the Association of Palliative Medicine. And I could go on and on, but I won't. If someone thinks that's a great idea and they want to use up an enormous amount of political capital, and if the Government thinks that's a good thing for Labour MPs and a Labour government to be spending time on from their point of view, I think that would be a surprising decision, and I think that would be a political mistake given all of the other challenges facing the country, frankly. If they want to do that, then they can have a go, but I think that would be unwise.

Mark D'Arcy: I wanted to ask you about this. So wearing your hat as a former Commons Chief Whip for a government. Do you think that there is the political energy there, the level of commitment necessary to get this bill through the rather torturous process necessary to bring it back and Parliament Act it? And we talked in a previous pod about how this might work mechanistically, but what we didn't [00:21:00] really get onto was whether there's the political energy behind it.

Mark Harper: Look, I try to sort of stand back from my participation in it, as it were. I think, look, first of all, the Government would have to be very keen to get behind it, and although the Prime Minister supports it, I think his political capital is somewhat less than it was.

But very senior members of the government are not in favour of it. The Deputy Prime Minister voted against it, as did the Health Secretary, as did the Home Secretary, and the former Deputy Prime Minister voted against it. So I'm not sure the Government collectively would want to choose this as the thing that it wanted to spend an enormous amount of political capital on. When we've got a conflict in the Middle East, we've got energy prices potentially going up, the economy showing no signs of improvement in growth, in fact, cutting growth this year. I think there are lots of priorities that they would choose instead. And if you're a Labour MP, I think maybe you want to prioritise the sort of things that your constituents care about.[00:22:00]

And I think the other thing is there's a real, big issue here, which Simon Stevens, I think highlighted very clearly about the National Health Service, this bill is going to amend the founding principle of the health service in a way that I think many people would find very worrying from a health service that's focused on improving your health and keeping you living well to one that helps to kill people. And I think lots of Labour MPs are gonna find that quite a difficult issue. And I think the second thing with the health services, I think it fundamentally changes how health decisions are made because I'm afraid, we all know there are limited budgets, and when you look at the cost of assisted suicide, which is very small in cash terms versus the cost of providing care for somebody towards the end of their life, which can be in many tens of thousands of pounds, it is, I think, inevitable that, whether it's explicit or implicit, health commissioners are going to start making decisions about what services they make available, [00:23:00] so that people are not actually faced with a proper choice. If you don't have access to good quality palliative care, then you don't have a proper choice. You're not, if you then choose assisted suicide, it's not because you've got a proper choice, it's because you're given no choice at all. And I think that's a real problem. And I think lots of MPs in the House of Commons will think about these things very carefully.

Ruth Fox: Can we go back to the mechanics of this as a Private Member's Bill behind the scenes? Because if the bill were to come back, we may have exactly the same issues in a second round, in the next session. We know that the organisers of the Bill, Kim Leadbeater and Lord Falconer, they're holding briefings, they're meeting with supportive peers, there's a degree of briefing and organization going on. We obviously know that there are some well-funded lobby groups on both sides of the argument. You are a former chief whip. You're relatively new to the Lords, but Chief Whips can organize, they can work out numbers, they can count. Are you meeting behind the scenes and [00:24:00] organizing in a similar way or are you all operating as individuals on an ad hoc basis?

Mark Harper: I think people talk to each other, of course, people who have shared views on both sides. And by the way, I've met both Kim Leadbeater and Charlie Falconer to talk through some of my concerns. And I said I don't have any personal issues with either of them. I think part of the problem here is this process is not appropriate. A Private Members Bill process is not appropriate for a piece of legislation like this at all. And I don't think a backbench MP or a backbench peer have the resources to do it properly. So I think that's part of the problem.

But look, if you listen to the debates, people have different reasons why they, if I take my side of the argument, that people have different reasons why they oppose the bill, not everybody agrees with everybody on the different solutions that have been put forward. We do all share the the fact that we have concerns, but some people have concerns about some bits of it versus others. As I said, Luciana Berger, for example, is very worried from her own experience as an MP about the impact [00:25:00] on people, for example, who are victims of domestic abuse and people in difficult family settings because she's seen examples of that from her constituency.

My view has been informed by my experience supporting disabled people and working with disabled organisations when I was the minister. And I know how funding decisions work and how government makes these decisions and I've got concerns about that. So different people come with different experiences, and so there's a sort of loose grouping. There isn't a heavily organized, everyone agrees with everyone about everything. It's much looser than that, I think, and I think that's probably similar to how things work in the House of Lords. And people come when particular issues are being debated that they have some experience about and they can bring something to it, not everyone speaks on every, now I haven't spoken in every group of amendments, there are some that I'm not a particular expert on or don't have anything to add, so when I haven't had something to add, I haven't added it.

Ruth Fox: But you have spoken quite a lot. About a third of your contributions in the House of Lords since you joined the House have been on this bill.

So [00:26:00] it's clearly a significant portion of your work in the House.

Mark Harper: Yes, it is. But that's partly because you can't focus on everything. And I've, when I became a member of the House of Lords, I was keen to be a working peer. So I'm there most of the time. I've done bits of legislation that I know about. So I participated in the Border Security Bill as a former immigration minister, Sustainable Aviation Fuel Bill as a former Secretary of State for Transport. The reason why I've spent a lot of time on this comes back to the point that the House of Lords has spent a lot of time on it, and from Christmas until the end of this session, it's taking up almost a fifth of the sitting days of the House of Lords. So the fact is, if you are participating in the bill, you are obviously going to be spending a lot of time on it.

And of course, since the turn of the year, we've also been sitting on a Friday from 10 till six. So we've been doing eight hours straight on the bill, which is much longer than on many other things. So if you are one of the peers participating in this bill, you are obviously going to be spending quite a lot of your time on it.

But look, [00:27:00] it's a very important society altering piece of legislation, whichever side of the debate you are on, and I think because of the potential impact on many vulnerable people in the country, whether you are directly impacted, I think it will also change how we think about supporting disabled and vulnerable people. It has massive repercussions and so I think it does require a significant amount of scrutiny and I'm very pleased to be spending the time on it because I think it's incredibly important.

Mark D'Arcy: There has been now a certain amount of saber rattling about maybe changing the procedures of the House of Lords so that peers cannot block a bill that's anointed by the Commons and sent forward to them to be revised. Do you take that seriously?

Mark Harper: I can see why some people might be saying that, but I think that would be very unwise because that would effectively mean that the House of Lords, the point of the House of Lords is to provide that level of scrutiny and look, when I was a minister in the House of Commons, of course it was annoying when you lost votes in the House of Lords, but quite often [00:28:00] not so much when the House of Lords was just taking a policy difference, but there were lots of occasions when they would pick up things where there was, shall we say, less than perfect drafting, or actually you hadn't thought about something or there were issues that just hadn't been considered, and they'd got picked up because someone had some expertise. Or brought forward some things from outside organisations. And actually there were, I remember when I was a minister, there were lots of things that we accepted that had been amended in the House of Lords because they actually made the bill better. And I think that will be, there would be something quite important lost, if that were to be case.

And as I said, our procedures are quite clear. All the House of Lords can do is ask the Commons to think again. And if the House of Commons thinks again and wants to do the same thing again, then it can get its own way. So in my book, it's a very clear democratic process. In the end, the House of Commons, the elected House can get its way, but the House of Lords can ask it to just reflect on whether it's doing the right thing and has got it right. And I think that's a good balance to strike in our parliamentary system [00:29:00]

Mark D'Arcy: And throwing forward to the next session, suppose, and it's not by any means a done deal, but suppose the House of Commons does send the bill back to the House of Lords, uses the Parliament Act, as you'll have heard on an earlier pod, there is a procedure where they can have a set of allowable amendments that you could then make. How would the House of Lords take that, do you think?

Mark Harper: I don't know is the honest answer. But I think part of the problem is the proponents of the bill have accepted that there's quite a lot wrong with it, which is why they've tabled 69 amendments to it already. So they would have to explain why they were trying to force onto the statute book a piece of legislation, which they themselves thought was suboptimal, and if they turn around and said, that's because we didn't fix all these things, my challenge would be, many of these issues were known about at the beginning of this process in the House of Commons, and you could have fixed it. If a lot of these issues have been fixed in the Commons where they should have been fixed and we'd got a bill where there were far fewer issues, then we wouldn't have spent anywhere near as much time [00:30:00] on it.

As I said, part of this challenge here from those that are saying it's taking too long, they perhaps should just reflect on whether it was in good enough shape in the first place.

Ruth Fox: We touched on the possibility of changes to Lord's procedures. What about changes to Private Members' Bill procedures?

Because I take the point, a lot of people say this should have been a government bill, and I, can understand why, because of the nature of the policy issues and the fact that there are significant costs involved. It affects the National Health Service. That there are these constitutional questions.

But historically Private Members Bills have been used as a route for this kind of moral and ethical policy change. And it ought not in and of itself to be an inhibitor to a backbencher bringing forward a bill like this and trying to get it onto the statute book. Are there ways in which we could improve things?

Because it seems to me to just say that there's no prospect that any backbencher should bring forward a bill of this kind, dealing with a moral or ethical issue in the future, seems to me a, problem in [00:31:00] terms of future Private Members' Bills and the purpose of them.

Mark Harper: There's two things there. So I think first of all, on that fundamental question about Private Members' Bills being used for moral or ethical questions and the examples that are sometimes used from, the past, I think the difference, in this case is, this isn't about just changing, the fundamental point which is amending the suicide act to allow somebody to assist someone else to kill themselves. It's all of the things that flow from that. The bill creates quite a big operational process with the various checks and balances in place. It has an impact because of the fact that the criminal justice system's not devolved, it impacts on the devolved relationship between England and Wales, which is a big issue. It's why the First Minister of Wales and the Health Minister in Wales both voted against the Legislative Consent Motion and the Health Minister said that the bill did not have the appropriate safeguards in place, and it's something he wouldn't be supporting if he was in [00:32:00] England.

So I think there's a lot of operational work, and I think the problem with that is, if you are not the Government trying to just get all of that right when it impacts on many Government departments, the relationships with the devolved administrations, that's why it's not suitable. It's not the fact it's a moral or ethical issue.

I think one of the problems in the Commons with how this works is the public bill committee that considered it gets a majority based on the second reading. So the point is the proposer of the bill had a majority and so many of the issues that we're raising, they were raised in the Commons, but because of the approach of the proposer of the bill, they were pretty much all rejected. So lots of these issues were raised in the Commons. The Commons had the chance to deal with some of them, but the view that the proposers of the bill have taken is broadly the bill's fine. Slightly simplifying that for not spending lots of time on it, but broadly is fine and they oppose most of them and they weren't voted through so effectively a lot of that work could have been done [00:33:00] in the Commons. Now, I don't think that's a perceived,

Ruth Fox: That's what happens with government bills, isn't it? The reality is that the majority at second reading always gets a majority on the public bill committee.

Mark Harper: Yes. But the difference is the work that's done in advance of it becoming legislation. Look, and don't get me wrong, all government bills are not brilliantly drafted. I accept that and perhaps it may even have been the odd bill I was responsible for wasn't brilliantly drafted, but the point is, expecting backbenchers to draft things that have big operational delivery responsibilities is tough actually. So I'd say I didn't criticize either of them for that work not having been done. I think it's fundamental. This is really a criticism of the Prime Minister. For someone who supported this, wanted the ends, but wasn't prepared to will the means frankly.

Mark D'Arcy: And the means in this case would've been a government bill produced with perhaps a free vote on the principle.

Mark Harper: Yes, and with a fair bit of work done in advance.

Look, if you've got a bill like this and all of the medical royal colleges are saying it's not [00:34:00] safe, then I think that's a bit of a problem. The government ministers itself in the Bill's current form are not prepared to stand at the dispatch box and say that it's safe to bring into law. Now, I, think that's a problem.

Ruth Fox: That brings me to the drafting and when we talk about drafting, we're not necessarily talking about the actual sort of legal drafting done by parliamentary counsel.

I'm saying that importantly because parliamentary counsel do listen to this podcast, and I'm meeting some of them shortly, so this isn't just about the actual legal text and drafting. It's about the policy detail that's enshrined in that if the government has concerns about the bill, there are these dozens of amendments that have been tabled by Lord Falconer that presumably have been filtered through the government departments. Many of them may well have been drafted by the government themselves, and Lord Falconer has been asked to table them. The government has, and you'll know this from having been involved in the Parliamentary Business and Legislation Committee, the government has an obligation to the integrity of [00:35:00] the statute book.

Is one of the things where this could all fall apart regardless of the politics and regardless of the policy issues, that ultimately taking the bill through the Parliament Act process in a second session, if they can't guarantee that they can get the amendments that are needed to it at a minimum from the government's perspective, that actually they might have to say that it can't go on the statute book because of the drafting problems.

Mark Harper: I think that's entirely possible. The government at the moment are not prepared to say the bill is safe to bring into law and won't say that at the dispatch box that it is safe. Now if a piece of legislation's not safe, I think that's a bit of a problem, actually, to put it mildly. And part of the problem is the government's been very clear that they are absolutely not getting involved in the policy decisions.

Now, I don't know to quite what extent they've been keeping that clear, but certainly all the written answers I've had and what ministers have said is that they've limited what the government's doing and what officials are doing purely to making [00:36:00] sure things are workable. So they haven't been giving policy support, it's drafting support, and the policy choices are being made by Lord Falconer and Kim Leadbeater and the government's not getting involved in that.

And I know from having been a minister, the work that parliamentary counsel do on drafting and actually putting the words on the page are very important, but just as important is the work that goes on in getting the policy right. And quite often there's an iterative process where you do the policy, the draftsmen try and put it into law, and in doing that, they often come up with lots of questions they need answering to be able to draft it, and then they come back to ministers with those things that you then have to decide. And that's the bit I think that's missing, that means that what's been put in front of us is very suboptimal and needs a lot of work, and wouldn't have happened if it had been done by the Government.

Mark D'Arcy: A final thought, Mark, do you think that not only have you stopped this bill in this [00:37:00] session, have you stopped it for this Parliament now? Do you think that the problems piling up are so great that actually this issue will not come back in the next parliamentary session or for the next couple of years?

Mark Harper: Look, I don't know. But in the end, look, the Government has to make a decision, because in the end, the bill does need Government support. Because it's got spending implications. And in the end, the Government has to decide whether it wants to support it. But the Government's gonna have to make a decision about whether, given all of the other challenges it faces, whether foreign policy related or domestic, and the economy and the cost of living and all the things voters care about, it has to decide in terms of its political capital and what it wants to spend its time on, whether it wants to make assisted suicide the most important thing that it spends its time on both in terms of legislation and political effort. And I would be surprised if most members of the cabinet and the government and backbench MPs, I spent nearly 20 years as a Member of Parliament, I just think that would be an odd set of priorities, but [00:38:00] I don't know. I don't know what people are gonna decide, but in the end, you have to make choices.

And there was, I think, a Labour special advisor, Ben Judah, who wrote a piece the other week, who made the point, exactly, as you've just said, that he was surprised that people thought this was a good thing for the Labour government, he's a Labour supporter, obviously, that this is surprising use of Labour's political capital and all of the things it could be spending its time on, and he was quite surprised that people thought this was a good thing for it to be focused on.

Mark D'Arcy: Mark Harper, Lord Harper, thanks very much indeed for talking to Ruth and me on the pod today.

Mark Harper: My pleasure.

Ruth Fox: Thank you.

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