Why a House of Lords private member’s bill on assisted dying is one to watch this week

Charlie Falconer, Labour peer and former lord chancellor, is to introduce a private member’s bill into the House of Lords on July 26 to legalise assisted dying in England and Wales. It is currently illegal in these parts of the UK to help someone to end their life. The introduction of the bill has been seen by some as a breakthrough in the campaign for a change in the law.

When MPs last voted on allowing assisted dying for the terminally ill in 2015, they decided by 330 votes to 118 against. But one of the MPs who backed change was Keir Starmer – then an opposition backbencher. The new prime minister has, over the course of his career, repeatedly signalled that he wants MPs to have a chance to revisit the issue.

Were the UK parliament to approve this change, it would be in line with similar changes elsewhere in the British Isles. Both Jersey and the Isle of Man have this year moved towards legalisation. The Scottish parliament is currently considering a bill proposing change.

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Whatever the hopes of campaigners, the reality is that Falconer’s bill will face an uphill struggle to pass. Private members’ bills – legislation proposed by MPs or peers (typically backbenchers) in their own capacity, rather than by the government – have often been considered ideal vehicles for conscience issues such as this. But it’s difficult for them to become law.

Since the 2010 election just 105 private members’ bills (of a total of nearly 2,000) started by members of the House of Commons have made it to the statute book. The odds are far worse for those coming from the House of Lords, where just five out of more than 500 becoming law in that time.

The procedural hurdles these bills face are a large contributor to their downfall. Even if private members’ bills put forward by peers make it through the House of Lords, they then join the back of the queue in the House of Commons. With just 13 days each year typically set aside for debating backbench bills in the House of Commons, bills further down the queue need to pass their second reading stage without a single objection in order to jump ahead. If just one MP objects – as famously happened to the upskirting bill in 2018 – the bill cannot progress.

The easiest way around this would be for ministers to give the bill some of the government’s own parliamentary time. In the 1960s this tactic was used to pass a series of major social changes – on capital punishment, homosexuality and abortion – all of which began as backbench bills. But it is less common today.

Since 2010, only one private member’s bill has been given government time. This was to overcome an objection from the very same MP who blocked the upskirting bill to a bill to protect girls from female genital mutilation.

Different paths to success

House of Commons time is, then, a scarce commodity and the new government – at least so early on in its tenure – will be reluctant to spend very much of it on private members’ bills. That tips the already slim odds against Falconer.

Yet even if Falconer’s bill doesn’t make it onto the statute book, it won’t have necessarily failed. MPs and peers who propose private members’ bills will often acknowledge that they have a variety of aims beyond purely getting their bills passed.

One form of success that could apply in this case is to generate media publicity. My own ongoing research into private members’ bills indicates that more than two-fifths achieve some press coverage. While not the end goal in itself, media attention can nonetheless be useful in building pressure.

In the case of assisted dying, backbench bills have been one of the key vehicles used to keep the issue on the political agenda. Since 2010, there have been seven private members’ bills on the subject, most of which have generated substantial volumes of media coverage.

Backbench bills can also be useful in moving debate around a topic forward. Scrutinising a specific legislative text – rather than conducting a more general debate on the broad topic – can be useful in refining how a reform might work in practice.

Parliamentary votes on the bills can likewise be used to test the balance of political opinion. The 2015 vote that saw MPs reject calls for assisted dying was itself triggered by a private member’s bill.

Read more: Assisted dying: first-hand accounts of what it's like to help a loved one die

One way this could work is for the issue to be taken up in a private member’s bill started by a member of the House of Commons. The next opportunity for that will be in September in a ballot. The bills drawn first in that ballot will join the front of the House of Commons queue, meaning that they will not face the same challenges as other private members’ bills – though their chances still remain uncertain.

Without intervention from the government, then, Falconer’s bill is unlikely to pass into law. But with the prime minister personally supportive – and a new intake of MPs whose views have not yet been tested – this is unlikely to be the end of the story.

Falconer’s bill may well still turn out to be be an important step for those advocating for reform – and that tells us a lot about how backbench bills can be used in Westminster to help bring about change.

Daniel Gover does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.