The Terminally Ill Adults (End of Life) Bill will not now be enacted – at least not before the end of the current parliamentary session, with prorogation scheduled for the week beginning 27 April. It is fair to say that within and well beyond Parliament, the Bill has been the subject of extensive and often divisive debate, and it is not the aim of this post to add to discussion of the merits of the Bill or of the principle of assisted suicide more generally. But alongside the debate about the Bill and the wider principle, a parallel discourse has been unfolding about whether it is constitutionally improper for the House of Lords to have blocked the Bill – which has been the effect of peers proposing so many amendments as to foreclose any possibility of its passage being completed by the end of the session.
Take, for example, the view advanced by Kit Malthouse MP, who contends that ‘[t]he House of Lords has disgraced Parliament’; that the upper chamber’s ‘existence is based on trust’ which has been ‘roundly abused by a small group of unelected zealots’, and that it is now ‘time for a serious look at who these people are, and how they are allowed to govern us’. Meanwhile, the sponsor of the Bill in the House of Commons, Kim Leadbeater MP, argues that peers in the House of Lords, by proposing so many amendments as to stall the Bill, have behaved undemocratically – the implication being that once the elected Commons approves a Bill, it is ultimately the constitutional duty of the unelected Lords to do the same, even if, in the course of doing so, it improves the Bill through an acceptable (but undefined) level of technical scrutiny.
On the face of the matter, such arguments may be seductive. Why on earth should an unelected chamber thwart the will of the elected House of Commons? Is that not by definition undemocratic? And if the United Kingdom is a democracy, surely that which is undemocratic is, by necessary extension, unconstitutional? But once we move beyond the superficiality of politicians generating soundbites for television audiences and social media posts, we find that the constitutional reality is much messier and more subtle than such posturing allows. When the House of Commons approved the Bill, many MPs made it clear that they had voted in favour of it on the assumption that the Bill would receive further scrutiny in the House of Lords. In those circumstances, the Lords can hardly be criticised for having engaged in thoroughgoing scrutiny. An obvious riposte to that point is that what the Lords has done has gone well beyond such scrutiny, and that there has been a concerted effort to kill the Bill by proposing so many amendments as to preclude any possibility of its passage being completed by the end of the session. If that was the strategy, it clearly worked. And it would be naive to deny that such strategic considerations have played a part in the treatment of the Bill by the Lords, notwithstanding protestations by some peers that the vast number of amendments proposed to the Bill simply formed part of the standard scrutiny process.
There is certainly, therefore, mileage in the argument that peers could have approached the Bill less obstructively by proposing a smaller, more focussed range of amendments in a way that would have allowed the Bill to proceed to a vote, thereby enabling the House of Lords to express a concluded view on an improved version of the Bill – and, in due course, permitting the Commons and the Lords, via the process of legislative ‘ping-pong’, to see whether an accommodation acceptable to both chambers could be reached. But even this point must be qualified, bearing in mind that, partly owing to its status as a Private Member’s Bill, the Terminally Ill Adults Bill reached the House of Lords without the benefit of many of the pre-legislative steps that might otherwise have been expected. As Baroness Berger put it in today’s debate, there was ‘no prior public consultation’, ‘no green paper’, ‘no white paper’ and ‘no international comparison’. In those circumstances, it is unsurprising that, at the very least, the Lords felt it necessary to undertake scrutiny more extensive that might otherwise have been necessary.
In any event, the sort of criticism levelled at the Lords by Malthouse (and others) appears to go further than simply taking issue with the procedural means by which the passage of the Bill was ultimately blocked. Instead, the broader argument appears to be that it is simply undemocratic for the Commons not to have its way and that the Lords must therefore ultimately approve a Bill that has already secured the approval of the elected chamber. That seems, for example, to be the position of Simon Opher MP, who asserts that this is ‘a dark day for the House of Lords and for our democracy’ and that ‘[w]e cannot allow our democracy to be dictated by an unelected chamber’.
But in fact the constitution is already set up in a way that prevents that from happening. First, if a Bill reflects a government manifesto commitment – thereby, in effect, equipping with a super-democratic status that aligns it not just with the will of the Commons but, more broadly, with the will of the electorate – the Salisbury-Addison convention renders it unconstitutional for the House of Lords to vote it down. But the Terminally Ill Adults Bill does not reflect a government manifesto commitment. Indeed, it is not even a government Bill – it is a Private Member’s Bill. In today’s House of Lords debate, Lord Falconer, who sought to take the Bill through the Lords, argued that assisted dying could never have been in a manifesto because is a conscience issue, meaning that the Bill is necessarily a Private Member’s Bill. But there is certainly no constitutional inhibition to including conscience issues in manifestos, even if doing so might be thought politically unwise or inappropriate. Second, under the Parliament Act 1911, a Bill can be sent for royal assent absent the House of Lords’ approval if that approval is withheld in two successive parliamentary sessions at least a year apart. Subject to certain complications that arise from the status of the Terminally Ill Adults Bill as a Private Member’s Bill, there is no reason in principle why that cannot happen. Indeed, supporters of the Bill have indicated that it is their intention to bring the Bill back in the new session and to invoke the Parliament Act if the House of Lords again declines to approve the Bill. Whether that will prove politically feasible remains to be seen – but it is certainly constitutionally possible.
The mechanism supplied by the Parliament Act is thus the democratic failsafe that ensures that, to adapt the language of Simon Opher, ‘our democracy [is not] dictated by an unelected chamber’. The very fact that legislation can be forced through by the House of Commons against the will of the unelected Lords is what makes the British system democratic notwithstanding that one of its two legislative chambers is unelected. Indeed, as data from the Inter-Parliamentary Union illustrates, many countries – including other mature democracies – have second chambers that are not directly elected or that include or consist exclusively of unelected members. It is simplistic, therefore, to argue, as MPs like Opher apparently seek to, that the existence of an unelected chamber that refuses to rubber-stamp legislation approved by its elected counterpart is undemocratic per se. Rather, the key question is whether the unelected nature of one of the two bicameral legislative bodies is sufficiently offset by other features of the system – such as, in the UK context, the Salisbury-Addison convention and the Parliament Act – such that the system is democratic when viewed in the round. There is, of course, room for reasonable disagreement about whether the UK constitution in this regard strikes the ‘right’ balance between, on the one hand, prioritisation of the will of the Commons and, on the other, equipping an unelected chamber capable of supplying a different perspective with a meaningful delaying power. So too there is room for legitimate debate about whether the House of Lords should be replaced with a directly or indirectly elected second chamber. But, absent such reform, to argue that it is incumbent on the House of Lords to wave through Bills approved by the Commons, and that for it to do anything else is unconstitutional or undemocratic, is very far wide of the mark.