Can a change be expected? Will the UK Law Change?

“It is now estimated that more than half of all MPs are in favour”

Assisted Suicide, or “Medical Assistance in Dying” to give it its Sunday name, is likely to have become legal in England, Wales and Scotland before 2030.   It will not have done so, however, as a result of its inclusion in any Party manifesto or as part of any Government legislation.   It falls into a small group of subjects that are regarded as “conscience” issues and upon which MPs are therefore allowed a free vote – that is, free from any interference by the respective Whips’ offices.   Other such subjects are gay marriage, abortion and fox hunting.   This means that the necessary change in the law will have come about as a result of a successful Private Member’s Bill.

There are four pre-requisites for such a success.

First, a backbench MP from the Governing Party in the House of Commons must have come near the top of the annual ballot for Private Member’s Bills and must have chosen such a Bill for his or her support.

Second, the contents of the Bill will need to reflect the support of public opinion to the tune of around 70% or more.

Third, the occupant of Downing Street at the time must either support the Bill or, at the very least, must be relaxed about whether it passes or not.   This latter requirement is to ensure that the Government itself will allow enough Parliamentary time for the Bill to pass through both Chambers.

Fourth, the majority view of the public must also command a majority in the House of Commons as a whole.

There have been three Private Members’ attempts in the past ten years.   The first two, in 2014 and 2015, did not have any of those four requirements.   In the past five years there have been substantial changes in public opinion – and in medical opinion, too.   The third, in 2021 therefore did have the benefit of widespread public support but failed on the other necessities.

The Falconer Bill

The Bill introduced in 2014 was promoted by Lord Falconer (Charles Falconer, a member of Tony Blair’s first Cabinet in 1997).   It was therefore introduced in the Lords and from the opposition benches.   It had some support on the Conservative side but, crucially, the Government refused to allow it the Parliamentary time necessary for significant progress and it therefore fell away at the time of the 2015 General Election.   Interestingly, though, an attempt by its opponents in the Lords to defeat it by means of a “wrecking” amendmentwas also defeated by 178 to 106, meaning that it could have made further progress, to the House of Commons, if the Government’s programme managers had been so inclined.

The Marris Bill

The attempt in 2015 was led by a Labour MP, Robert Marris who represented the constituency of Wolverhampton South West.   It was debated in full in the House of Commons on 11^th September 2015 but was defeated at its Second reading by 327 votes to 118.   The vote was taken on a Friday and the number voting in total was only 68% of the 650 MPs at the time.

Having been defeated, the Bill made no further progress.

The Meacher Bill

In the Autumn of 2021 a third Bill was introduced.   The sponsor was Baroness Meacher, a Crossbencher, and her Bill was debated in full in the House of Lords.   The debate lasted all day and almost 130 Peers spoke.   Approximately 100 were in favour and approximately 30 were against.   No vote was taken and therefore the Bill was theoretically approved to pass on to its next stage.   The Government Whips, however provided no further Parliamentary time and the Bill “fell away” at the end of the Parliamentary session..

The six month “safeguard”

All three of these Bills were strongly supported by Dignity in Dying.   They therefore contained the “six month safeguard” clause which stipulates that medical assistance in dying can only be provided to an individual who is suffering from a terminal illness that is likely to prove fatal within the next six months.

The enormous advantage of this clause is that it effectively removes the threat of coercion.   Many MPs have expressed concern that vulnerable elderly people might be persuaded, by relatives with their eyes on inheritance, to seek an assisted death much earlier than they would otherwise have chosen.   Such coercion is, of course, a criminal offence.   So, the argument goes, by inserting the six month safeguard the threat of coercion is taken away; why risk committing a criminal offence if your elderly relative is going to die within six months anyway ?   This wording is known as the “Oregon” model.   The alternative “Canadian” model does not contain it, although other safeguards are provided instead.   Some people in the palliative care world also believe that many elderly patients want to end their own lives, simply because they have become a “burden” upon others.   The six-month safeguard would, therefore, quite deliberately remove their ability to do so unless there was another underlying cause.

There are, however, two clear disadvantages of the six month safeguard clause.   First it is very hard to get two independent doctors to certify that a patient is within six months of death, unless the proximity of death is clearly very close indeed – in which case the suffering will probably also have become intense.   Second, the inclusion of such a clause will mean that the new legislation will have been of little help to sufferers of motor neurone disease, Parkinson’s disease, Lewy body syndrome or any form of dementia which is still in its early stages.   In these respects, the Canadian model has proved itself more effective.

Differences between the campaigning organisations

This difference between the two models has also drawn into sharp focus the policy differences between the two main campaigning bodies in England and Wales.   Dignity in Dying is committed by its policy (though not by its constitution) to the inclusion of the six month rule.   My Death My Decision is opposed to it.   Although both organisations are in favour of a change, this division of opinion about the safeguard has limited the scope for collaboration.

Of the two, Dignity in Dying is clearly the market leader.   A very professional organisation, it employs 18 members of staff from its £177,000-per-year suite of offices in Oxford Street.   Its annual income in 2021 was £2,020,000, of which 78% came from subscriptions and donations.   It has an “active membership” of 20,600 together with 362,000 e-mail supporters and a Facebook following of 330,000.

By contrast, My Death My Decision is more limited in scale.   Its income in the eighteen months to June 2022 was around £250,000, of which £179,000 came from legacies. The balance, an increase from £26,000 in 2020, came from other donations and from membership fees – reflecting a substantial increase in its support during the year.   It has an active membership of over 1,000 and a highly effective team of volunteer directors.   Its impressive list of Patrons includes Lord Martin Rees (the Astronomer Royal), Polly Toynbee, Professor A C Grayling and Dr Phil Hammond.   My Death My Decision gave support for Baroness Meacher’s recent Bill, whilst stipulating that “…in its present form, this Bill would not help those with incurable medical conditions or those with a greater life expectancy than 6 months”.

The Hollinrake Bill

An interesting snapshot of the relationship between My Death My Decision and Dignity in Dying was provided in 2019 by a Private Member’s Bill suggested by Kevin Hollinrake MP.   This was intended to be a “Ten Minute Rule Bill”, a little-known Parliamentary procedure under which MPs can get ten minutes of time in the Chamber to introduce a subject of interest and relevance to them.   After their ten minutes in the spotlight, such Bills are rarely seen again.   Kevin Hollinrake, however, has made something of a speciality of actually getting them through.   He is the Conservative MP for Thirsk and Malton in North Yorkshire. In 2017 he passed the Parental Bereavement Leave Act and in 2019 he got “Claudia’s Law” through.   This latter Act, prompted by the still-unexplained disappearance of Claudia Lawrence in 2009, enables families to manage the affairs of people who have been missing for more than 90 days.

Also in 2019, with active help from the British Humanist Association and My Death My Decision, he was seeking to introduce a Bill to decriminalise the “offence” of accompanying someone to Switzerland for a medically assisted death.   At the moment, such people are protected by “guidance” but they are, nonetheless, committing a criminal act and many feel they need greater protection than the simple opinion of the Director of Public Prosecutions at the time.

Surprisingly, this harmless little Bill was opposed by Dignity in Dying.   The reasons for their opposition are still not clear.   It may be that it simply did not fit in with their wider Parliamentary strategy.   For whatever reason, Dignity in Dying marshalled their formidable Parliamentary lobbying team and Kevin Hollinrake was persuaded not to introduce the Bill at all.

It could be argued that competition spurs success.   Having two organisations working in the same direction but slightly at odds with each other could be beneficial to their shared cause.   Possibly.   The alternative is that a great deal of creative energy is being spent in rivalry and that a greater degree of co-operation, even agreement, could bring forward the date when the law is eventually changed.   Ironically, many grassroots members of Dignity in Dying seem unaware of the differing campaign goals and would also support any new law that would help those with MND, Parkinson’s and early-stage dementia.

What next?

The announcement in December 2022 that the House of Commons Select Committee on Health and Social Care would be holding their own inquiry into Assisted Dying was good news – though not entirely unexpected. Its report and recommendations, may still reflect the earlier views of the current members of that Committee, though that should not be taken for granted. They will (and should) be influenced by the evidence they will receive. However, this is not, frankly, going to have any effect upon the chances of the law being changed this side of a General Election. People are getting their hopes up too high and too soon.

As part of its research, the Committee will be making a fact-finding visit to Oregon. Surprisingly, they are not currently intending also to visit Canada.

The Committee’s deadline for written representations was the 20th January 2023 and it started its oral evidence sessions on the 28th March. It is likely to be aiming for a publication date before the end of the third week in July. MDMD has described the membership of the Committee as “unbalanced” and says “it is hard to see a possibility of them suggesting reform … ” This is too harsh. Although eight of the eleven members have previously expressed reservations about the concept of assisted dying, that has simply been the default position of most MPs; mainly due to a concern about coercion by relatives. The sea-change in opinion amongst the public has been similarly reflected in Parliamentary views too. It is not realistic to base the current views of the committee upon historic statements made, in many cases several years ago, when the debate had hardly started.

Anyone interested in seeing the US arguments against assisted dying should read the preamble to “H.Con.Res.68” as presented to the US Congress in February 2022.

The next UK Election is expected in the early Autumn of 2024 and must, in any event, be held by the end of that year.   Between now and then there is still a chance that a further Bill will be presented.   Ironically, the chances of such a Bill being introduced have now fallen as a result of the new inquiry. Nonetheless, if the Committee is able to produce its report ahead of the Election, it will form the evidential background against which any future Bill can be considered.

Between now and 2024, the election of Rishi Sunak as Prime Minister means, in spite of his Hindu faith, that Number Ten itself will be less of a barrier than before. The removal of Robert Buckland will certainly help. However, Suella Braverman’s continuation as Home Secretary is a bad sign and the appointments of Ed Argar and Victoria Prentis to the Department of Justice do not augur too well either. Both these last two voted against the Marris Bill – apparently at the suggestion of the Conservative Whips’ office – but are also considered to be open-minded about Assisted Dying now. Rishi himself is surrounded (both personally and geographically) by MPs who are supportive of a change. The Government’s legislative programme will still consume nearly all Parliamentary time in the forthcoming sessions. The safest bet, therefore, is that any change in the law on Assisted Dying will still have to wait until 2025.

The chances of a change before 2025 remain small but they are not quite negligible.

As a final comment on the prospects for a change in the UK Law, it should be mentioned that Scotland is much nearer to such a change than England, Wales or Northern Ireland.   In the Scottish Parliament, the Private Member’s Bill presented by Liam McArthur MSP (Liberal Democrat, Orkney) is making good progress, albeit somewhat laboriously.   An apparent majority of all Parties in the Scottish Parliament are likely to support it. A change in the law in Jersey is likely also in the very near future.

Unlike Switzerland, however, the new laws in Scotland and Jersey are likely to exclude the provision of assisted dying for people who have not been residents for at least six months.