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

[00:00:17] Ruth Fox: Welcome to Parliament Matters, the podcast about the institution at the heart of our democracy, Parliament itself. I'm Ruth Fox.

[00:00:24] Mark D'Arcy: And I'm Mark D'Arcy, and welcome to the second in our special series of mini pods devoted entirely to the Terminally Ill Adults (End of Life) Bill, the bill that aims to legalise assisted dying.

[00:00:35] Ruth Fox: This week, MPs on the committee examining the bill have heard from nearly 50 witnesses across three jam packed days of intensive evidence taking.

[00:00:44] Mark D'Arcy: They're now taking a week off. in order to digest what they've been hearing. But in the meantime, Ruth, we've got a bit of an exclusive for the listeners.

[00:00:51] Ruth Fox: Yes, so we've been talking to Dame Elizabeth Gardiner. Until recently, the government's chief drafter, she's the person who's actually drafted the bill that MPs are now looking at. And, well, drafters, Mark, they rarely speak in public about their work, and certainly not on podcasts. So we were really pleased she agreed to come on the pod.

[00:01:12] Mark D'Arcy: Well, we're delighted to welcome to the pod now Dame Elizabeth Gardiner, who was the drafter of the bill on assisted dying. And Elizabeth, first of all, can you tell us how you got that role? Because it was a pro bono thing that you did. How were you approached? What was the arrangement that was made, if you like?

[00:01:29] Elizabeth Gardiner: So I retired from the civil service at the beginning of last year. And I hadn't planned to do any drafting, and then somebody who I used to work with contacted me to see whether either I would be interested in producing this bill or if I knew anybody who might be. As you may know, the drafting resources are in very short supply across the world, so people are always looking out for people who might undertake this sort of work.

[00:01:53] And I thought about it and decided that I would be quite interested in doing it, as you say, on a pro bono basis.

[00:02:00] Mark D'Arcy: And Parliamentary Counsel, the specialist lawyers who, who draft laws, are, as you say, in pretty short supply. But you did have quite a range of attempts to create a law on this subject from all sorts of jurisdictions across the globe.

[00:02:14] And indeed, attempts in Scotland, attempts in the Isle of Man, attempts in Jersey to come up with assisted dying laws. So was your first move to have a look at what other people had attempted? And of course, there have been several attempts at doing a bill on this subject before in the House of Lords, particularly.

[00:02:28] Elizabeth Gardiner: Yeah, so, so after I had indicated I would be happy to do it, before I actually spoke to anybody, I did have a little bit of a look around to see both what had been put into the UK Parliament and also what was in or had been passed by other jurisdictions. So yes, it is interesting. Looking at precedents is always a double edged sword as a drafter because you want to come to it with an open mind and think about what the problems actually are. You know, it's not a copy and paste exercise from somebody else's bill, but it is always interesting to see the things that people thought needed to be covered off in legislation in different jurisdictions.

[00:03:00] Mark D'Arcy: What's the kind of essential legal problem that you're trying to solve here? You're trying to carve an exemption into existing criminal law. Suicide is a criminal offence. Abetting a suicide is a criminal offence. So you had to kind of create a space where it wasn't.

[00:03:13] Elizabeth Gardiner: Exactly. So I think that as a drafter, that's what you're trying to work out when you get any set of instructions, what is actually the problem here. And from the point of view of people who wanted to promote this bill, the problem was that the criminal law apparently makes assisting suicide a criminal offence.

[00:03:30] So you're trying to ensure that something is not a criminal offence, but obviously you don't want to just repeal the criminal offence, you're trying to set up the scheme, which if people abide by, they would not then be committing a criminal offence. That's the sort of basic proposition. And then you're thinking about things like, if an assisted death is to be possible, how is that going to be provided? Is that the private sector? Is that some state provided organisation? So, those are the two main things that were in my mind as I was trying to structure what we were about.

[00:04:02] Ruth Fox: Elizabeth, you don't draft the bill according to your own thoughts and your own sort of personal preferences in policy terms. When you were a government drafter, you take instructions from the government department about what it is that the Minister wants.

[00:04:14] And here on this bill, you took presumably instructions from Kim Leadbeater as the sponsor of the bill. Now one of the suggestions that has been made in the Public Bill Committee, for example, in the last week by some of the opponents of the bill, is that this is a bill drafted by the campaign groups like Dignity in Dying. Now, it wasn't because you were drafting it, but can you tell us a little bit about what the process was in terms of engagement with Kim and others about how this started and how you sort of began the process of engaging about what the structure of this bill should look like, to sort of fill it out on top of the detail that you've just described about amending the, the Suicide Act.

[00:04:53] Elizabeth Gardiner: Obviously, in a normal government bill, Parliamentary Counsel would receive written instructions and there were no written instructions for this bill, and indeed there wasn't really time to produce written instructions.

[00:05:02] So it was very much an iterative process between me and Kim Leadbeater,, the member in charge. So I had had a think about it before I went to a first meeting and had looked at, as I say, the existing bills and legislation out there and had a thought about what this might look like and what were the sorts of questions that I would need answers to in order to produce a scheme.

[00:05:26] And so I, I went and met Kim and we talked about the pros and cons of different approaches. We talked about the sorts of things I would need information about, or that she would maybe need to go away and think about and talk to other people about and come back to me. And so essentially it is the same process as you go about drafting a government bill, but obviously the machinery that you've got producing a government bill with government departments, departmental legal teams, departmental policy teams, ministers making decisions, none of that is there.

[00:05:56] So it's all done a bit more on a shoestring, but at the same time, the essential nature of it is the same. And it was actually, from my point of view, a very positive experience in that, for the drafter, what you really want is the people instructing you to be really engaged in the process, and to really want to discuss it with you and get to the bottom of issues, and to be a bit challenging and sort of question why you're doing things the way you're doing them and suggest that other ways would be better, and I very much got that from Kim and her team, which was very fortunate, I think.

[00:06:27] Ruth Fox: And you said, um, you had a limited amount of time. So the Private Members Bill ballot was, what, September? She indicated in October she wanted to bring forward this bill. She had to present it at First Reading. So how much time in practical weeks, as it were, did you, did you actually have to do it? And how would that compare to what you might have had when you were a government drafter? Because one of the criticisms is that this would have been such a better bill if it had only been a government bill. And I think some of those of us who have been critics of government bill processes in the past would say, well, actually some of that doesn't quite stand up.

[00:06:59] But how much time did you have?

[00:07:01] Elizabeth Gardiner: For this bill, I think I was first contacted around the 20th of October and I produced the first draft - I went back to have a look - on the 28th of October and the bill was introduced on the 11th of November. So fairly contracted timetable. A government bill, you know, how long is a piece of string.

[00:07:18] Some government bills take a year to prepare. Some take an afternoon, so it varies a lot depending on, you know, the circumstances. The drafter will always tell you they need more time allowed. You know, every drafter would like more time for their bill. But obviously, Kim Leadbeater was bound by the requirements of the timetabling of Private Members Bills and the ballot, and to get her bill onto that first Private Member's Bill day. It had to be ready. And in fact, I know there has been some criticism of, or there was at the time, about the bill not appearing, but many government bills appear quite close to when they're up for Second Reading. And I think we managed to get it out two weeks or so in advance of that, which was more time than many, many Private Members Bills would be produced.

[00:08:03] Mark D'Arcy: The legislation that set up the National Health Service gives the Secretary of State for Health a duty to protect life. And there's some thought that actually having an assisted dying service possibly within the NHS, not necessarily, I don't think it's in the bill that it has to be within the NHS, the structures for delivering assisted dying services are yet to be decided as I understand it. But is there a contradiction there? Is that a problem that has to be got over in this legislation?

[00:08:29] Elizabeth Gardiner: One of the joys of being Parliamentary Counsel is that you're not bound by the existing law because, of course, your job is to change the law. So, if that is a restriction that would curtail the ability of this to be delivered through the National Health Service, the Bill could change that.

[00:08:42] So, at the moment, the Bill has a power to enable the Secretary of State to make provision for the service, but it isn't restrictive in how that can be provided. So that's to be set out in regulations, and I'm sure that will be the subject of discussion in Committee. So, you know, if existing health service legislation needed to be changed to achieve whatever policy result they wanted, then that could be done. It may be that it's provided in a different way that doesn't require that sort of change to be made.

[00:09:09] Ruth Fox: And one of the challenges of this bill is that although this is Kim's bill and she sort of set out what she thinks the broad sort of policy direction should be, ultimately it's the Government that's going to have to make some decisions about how to operationalise it at an administrative level and a financial level and so on.

[00:09:26] And yet the Government's position is that it's neutral and therefore at the moment we don't know what its response is in, for example, how would it want to use the regulations to enact this through the NHS or otherwise. How did that affect you as a drafter? Because you've only sort of got part of the story and how does it affect you in terms of thinking about how much detail goes on the face of the bill, how much has to go into powers to ministers to regulate at a later stage?

[00:09:53] Elizabeth Gardiner: So some of the detail, particularly around the safeguards, Kim was very clear that these needed to be on the face of the bill and we worked through those as a matter of what the policy was and reflected that on the face of the bill. In other areas, like, is it going to be delivered through the National Health Service or in some other way, indeed the regulation of any substances that might be involved, in the time available, we didn't have time to go into all the detail of how those regimes work and to make the provision on the face of the bill. And so there are regulation making powers there, which enable that provision to be set out in detail. As you say, when the Government has looked at it and decided how it would implement it.

[00:10:35] Mark D'Arcy: This bill is ultimately going to be surrounded by layers of, as you say, secondary legislation on things like the substances that can be used for assisted dying. And beyond that, kind of soft law, you know, General Medical Council guidelines and internal regulations on spotting coercion and things like that, that don't have the full force of law, but if you're a doctor, you know, up before the GMC over an assisted dying case, they'll feel pretty much like the full force of law.

[00:11:00] Elizabeth Gardiner: That's right, and there's provision in the bill for codes of practice, which operate a bit like that, so they're not law as such, but they give those who are subject to them some protection if they comply with the Code to know that they are doing the right thing.

[00:11:13] Ruth Fox: Can I ask how, both for this Private Member's Bill but also perhaps for government bills, how you as a drafter have to think about the devolution issues?

[00:11:20] Because one of the things that's come through the evidence sessions this week is the frustration of, for example, Plaid Cymru's leader Liz Saville Roberts about the implications for Wales of this bill and her not being able to get the answer to her questions. Because the people giving evidence are not in a position to do so, in the sense she needs answers from government ministers, she needs answers from Welsh ministers.

[00:11:43] But how do you as a drafter think about the devolution settlement in legal and policy terms to enable you to draft the provisions?

[00:11:52] Elizabeth Gardiner: On any bill, the devolution settlements are incredibly important. So the drafter is always thinking about it. And on a government bill, indeed, the government lawyers will have been thinking about it long before it reaches the drafter.

[00:12:05] And it can manifest itself in many different ways. It's difficult to be sort of general. But you're thinking sometimes devolved issues will be dealt with in a Westminster bill. Sometimes the bill will be drafted in such a way that you're expecting there to be maybe parallel legislation or no legislation in a devolved administration.

[00:12:24] So, you know, it's hard to say that there's one rule that applies everywhere, but we're certainly always thinking about it. And we were thinking about it here, but obviously the core of this bill is changing the criminal law and providing a carve out for what is currently a criminal offence and the criminal law for Wales is not devolved. So that, that is a matter that is properly dealt with at Westminster.

[00:12:48] Mark D'Arcy: There may be some kind of friction across, as it were, the joins in the UK and the Crown dependencies because there's currently a bill being considered in the Scottish Parliament, which may come up with quite different rules for assisted dying.

[00:13:01] There's legislation in process in the Isle of Man.

[00:13:04] Elizabeth Gardiner: Yes, I mean, maybe that's less about devolution, but about cross border issues on any piece of legislation. You are always thinking about cross border issues, both cross border within the UK, but also people abroad and people in the UK and thinking about what you need to do to ensure your regime works.

[00:13:22] So, you know, the drafter always has that sort of thing in mind. I mean, the fact that the law is different in different areas, you know, that is the whole purpose of devolution, you might say. So that's the system within which we are working.

[00:13:34] Ruth Fox: With a bill, you get not just the legal text, but you get all the sort of surrounding documents, supporting documents like the Delegated Powers Memorandum and the Impact Assessment.

[00:13:43] And there's obviously been some criticism that these documents aren't available because this is a Private Member's Bill. There are Explanatory Notes. Were you involved in drafting those or is those the responsibility of somebody else?

[00:13:54] Elizabeth Gardiner: So on the Explanatory Notes I did the first draft of the kind of narrative of the clause by clause description, but I didn't do the bit at the beginning which sort of sets out the policy because that's not my area.

[00:14:07] I think that this is the procedure we've got, this is the one that we've complied with. I think the government have indicated that they will be producing some of that documentation as they would for other Private Member's Bills that go forward. You know, if the House wants a different process, it's within its remit to ask for that, I would have thought.

[00:14:24] Yes. But the Member producing a bill in three weeks or whatever it was, was a very big ask. And I don't think that the Member's are resourced to do the sorts of other documents that would accompany a government bill.

[00:14:36] Ruth Fox: Yeah. Worth perhaps mentioning that, Mark, that the resource is actually available to Members for Private Members Bills. I mean, as Elizabeth alluded to earlier, you know, she did this pro bono, but They get basically a couple of hundred pounds for drafting advice. I mean, no disrespect to your colleagues, uh, um, Elizabeth, but that would probably barely buy them half an hour of some of your colleagues time. So it is very, very limited. And, and as you say, if we want to have a better process for Private Members Bills and we want to get better legislation out of it, you've got to resource it.

[00:15:04] Elizabeth Gardiner: I think it's very hard for Members because they come top of the ballot and they think, great, here's my chance. The government will produce what are called handout bills every year, and will be offering those to Members and seeing if they fancy taking up one of those handout bills, in which case it will have been drafted by Parliamentary Counsel in the Civil Service, and they will get support from the government.

[00:15:27] Ruth Fox: A handout bill is basically a piece of legislation that the government would quite like to get onto the statute book, it's supportive of, and basically offers the draft to backbenchers who've been successful in the ballot and says you take it forward and they're usually quite small, niche but important changes to the law.

[00:15:43] Elizabeth Gardiner: Exactly, yes. And then there are other bills, sometimes a Member will introduce their own bill and then the government will decide to support it at some point but haven't produced the initial text, in which case the government might produce amendments to the text to get it into fit shape or to make any changes with the agreement of the Member that they think are necessary.

[00:16:04] Mark D'Arcy: And that's what we're waiting for now, I suppose, with this bill, is to see whether any government amendments come down the track at it. As a Parliamentary Counsel have you previously watched Public Bill Committees on bills that you've drafted? What's it like having your work sort of pulled over?

[00:16:18] Elizabeth Gardiner: Sadly I have, yes!

[00:16:19] I do sometimes watch them.

[00:16:22] I mean, obviously we're at a very early stage here because we're just at evidence sessions, and Private Members Bills wouldn't normally even have evidence sessions. You know, my impression so far is that the evidence sessions have been of much more interest to the members of the Committee, perhaps, than most Public Bill Committee sessions are.

[00:16:39] And so people are very, very much engaged. asking questions. That can only be a good thing, I think, if it, you know, it all gets proper scrutiny, and people are properly engaged in the process. That's all that we want, really.

[00:16:50] Mark D'Arcy: But as a general thing, when, when you're watching a bill that you've written going in front of a Committee, it must be a pretty uncomfortable moment.

[00:16:58] Elizabeth Gardiner: We've got quite thick skin when we draft, draft bills. We're well used to the things being described as badly drafted, when hopefully most of the time they mean they don't like the policy, as opposed to the drafting. But, you know, we don't always get it right, and it's, you have to listen to what's said in Committee because often even if the precise point being made is not quite right, it may unearth some underlying problem with what you've drafted. So it's always a good idea either to watch it or to read it in Hansard and see what people are saying about it and not to be sort of closed off to the idea that they might be right.

[00:17:30] Ruth Fox: Well going to that amendment process. The government has a duty to the statute book. So whatever it thinks about the policy or the bill, it has a duty to the statute book to make sure that things get into law that are workable and that are constitutionally appropriate and so on. So what do you think might be happening now behind the scenes in terms of Government thinking about amendments? I mean, do you imagine that, for example, that some of your former Parliamentary Counsel colleagues will be being asked to draft up amendments or will that lie with departmental lawyers rather than Parliamentary Counsel? You know, will they be looking at it at this stage or will they be waiting for a bit later on in the process? How does it work in government?

[00:18:11] Elizabeth Gardiner: So, unusually, obviously, for this bill, the government has declared itself to be neutral. Usually, the government would have taken a position to either oppose or support the bill by this stage, but on this occasion, given the nature of the policy, the government is remaining neutral.

[00:18:25] But the departments do take very seriously their duties to the statute book. And, you know, I think will be looking closely at the bill, I'm sure, and thinking, does this work? Are there areas where this doesn't quite work because of all the things we know about the system? Or are there ways that we, if this were enacted, we would rather it worked in a slightly different way?

[00:18:45] And I'm sure that that will be happening and that those discussions will be taking place.

[00:18:50] Ruth Fox: How does a government reach a view on a Private Members Bill? And what's the sort of normal internal process? Because there has been some criticism of, you know, has the government taken the appropriate approach, followed the rules in reaching a view on neutrality? What's the normal process internally for reaching that kind of decision?

[00:19:08] Elizabeth Gardiner: I don't know what has happened on this occasion because I've been out of it for a while. But it would be like any government decision in the sense that on every Private Members Bill that comes forward, the government will be looking at it and thinking whether it's taking a position because it'll have to say something when the bill gets to Second Reading.

[00:19:25] And so the internal decision making within government to ensure collective decisions are taken on this legislation as on any other legislation will just play out.

[00:19:36] Ruth Fox: So that would be through Parliamentary Business and Legislation Committee, or is it because of the compressed timescales, is that done in writing, sort of a write around process?

[00:19:43] Elizabeth Gardiner: I think it is normally done in writing.

[00:19:46] Ruth Fox: Yeah. And um, are you finished now in terms of your sort of role in the bill? Are you going to be helping Kim with drafting amendments, or is that it? Are you done?

[00:19:55] Elizabeth Gardiner: I'm not completely done, but I'm, I'm more or less done. You know, occasionally I get asked a question about how something is intended to work, or could it be better if it did this type of thing, but It'll be very interesting as the amendments start to come in.

[00:20:07] I will certainly be looking at them for that same reason as I said, you know, they can just throw up something or make you think about something a bit differently and make you realise that something isn't quite as it should be. And, you know, that's what the scrutiny process is all about really.

[00:20:20] Ruth Fox: You've now drafted government bills, you've drafted a Private Member's Bill.

[00:20:23] What are your reflections on the differences in the process? How as the drafter has it sort of affected you? I mean, you obviously had less resource available to you in drafting this bill and in such a compressed timetable, but what's your reflections on the process?

[00:20:37] Elizabeth Gardiner: Essentially, the drafting process is the same. You're doing the same job, but it is very challenging. And when I think of private members who don't have access to drafting resources and the Clerks in Parliament are extremely helpful and will try and help them produce a bill to give them a best chance when that goes into Parliament. That is extremely challenging.

[00:20:59] And I think maybe I realise how for granted I took the fact that I had the entire might of the government machine sitting behind me when I was in government. And it is certainly very different. But at the same time, for a bill perhaps like this, which is very much telling a story of a process that has to be understandable to everybody - it's not some technical piece of tax legislation that's only going to be read by accountants - there's something quite helpful about going right back to basics and working out and doing something that's as simple but workable as possible, I think.

[00:21:36] Mark D'Arcy: Well, it's fascinating to hear from such a key player in such a unique parliamentary endeavour.

[00:21:41] Dame Elizabeth Gardiner, thanks very much indeed for joining us on the pod today.

[00:21:44] Elizabeth Gardiner: Thank you.

[00:21:45] Ruth Fox: Thanks, Elizabeth.

[00:21:48] Mark D'Arcy: Well Ruth, what do you think we learned from that then?

[00:21:50] Ruth Fox: Well the first thing that struck me, Mark, is I hope it addresses the question that's been in people's minds about who's had the drafting pen behind all of this.

[00:21:59] So there've been suggestions, allegations made that it's been Dignity in Dying and the campaigners behind it. But this is, until recently, the government's chief draftsperson. Somebody who's got 30 years experience. They have to be trained over about, I think it's about seven or eight years. It's a real skill. And a very senior civil servant until recently. So I hope it puts to bed that idea. This has been done by a qualified professional.

[00:22:25] Mark D'Arcy: A proper draftsperson. Yeah. Not just sort of dashed off in the back room of some pressure group, essentially.

[00:22:30] Ruth Fox: Absolutely. But equally it also, I think, highlights the fact that there are limits to the Private Member's Bill process when it comes to drafting a bill.

[00:22:39] I mean, first of all, to do this in four weeks, you know, I mean, she joked, didn't she, well, you know, you can produce a government bill in an afternoon if you have to.

[00:22:47] Mark D'Arcy: And heaven knows it's happened enough recently. Yes.

[00:22:49] Ruth Fox: And this, of course, remember, is the woman who was head of the government's drafting service during both Brexit and Covid. Yeah. When, you know, they were under immense pressures. But it sort of demonstrates that, of course, they would have always wanted more time, and you could always improve it with more time. But the nature of the process, the fact that the government's neutral, you're drafting something without quite knowing exactly what the government is going to be willing to accept or agree to in terms of how this assisted dying service works is difficult and challenging. But I thought it was interesting how she approached it in terms of the legal problem that you're trying to unlock here.

[00:23:23] Mark D'Arcy: Carving out the space in which the law on. Assisting or abetting a suicide is suspended under certain circumstances and certain conditions with certain permissions and certain scrutiny.

[00:23:34] And that's what she's built. And what we're still going to have to find out is whether the MP's first on the Bill Committee and later in the House of Commons at Report Stage think of the edifice that she's constructed.

[00:23:45] Ruth Fox: Well, Mark, shall we talk a little bit as well about, um, what we've learnt this week from the evidence sessions?

[00:23:49] I don't know about you, I haven't been able to watch all of it, um, hours and hours of it.

[00:23:53] Mark D'Arcy: There's an awful lot of it, it must be said.

[00:23:55] Ruth Fox: But I watched a fair bit on the first day and dipped in and out on the second, so what did you make of it?

[00:24:00] Mark D'Arcy: Well, one of the most interesting witnesses for me was a guy called Andrew Green, who's a retired GP, who chairs the General Medical Council, the GMC's Ethics Committee, and he was very, very clear that one of the things he absolutely didn't want in the bill was a very rigid prescriptive set of rules about what doctors can say to patients about assisted dying.

[00:24:22] He argued that it was far, far better to allow a doctor to judge a situation rather than to give them an almost tick box set of things that they were or weren't allowed to say, because if you do that, you're inhibiting the ability of a doctor to communicate with a patient who's probably in a rather fraught state.

[00:24:41] And, you know, these are difficult conversations at the best of times, but trying to force them into some kind of rigid legal framework would just make life impossible, he argued. And I think the Committee nodded and listened very carefully to what he had to say there.

[00:24:52] Ruth Fox: Yeah, I think that was also reflected in the remarks of, uh, Chris Whitty, the Chief Medical Officer who was on the first witness panel.

[00:24:59] Mark D'Arcy: And, uh, famously a regular on our TV screens during the pandemic.

[00:25:03] Ruth Fox: Yes, and he stressed the importance of simplicity. What he didn't want was people spending the last months of their life in what he described as a bureaucratic thicket.

[00:25:11] Mark D'Arcy: Yeah.

[00:25:12] Ruth Fox: For me, that also was slightly challenging because he was stressing the importance of putting the operational detail into delegated legislation rather than on the face of the bill so that it can be adjusted later if necessary and changed to reflect how the system works.

[00:25:27] Now, that is a prime reason why we have delegated legislation so that you can put the detail that you might want to change at a later date into regulations as opposed to a bill that becomes an Act of Parliament. But as somebody who slightly gets, um, slightly nervous about too much of that going into regulations rather than on the face of the bill, it'd be interesting to see where MPs think the balance should lie.

[00:25:50] We've actually published a briefing about a couple of the delegated powers that we've got concerns about.

[00:25:54] Mark D'Arcy: Yeah, well that's one of the issues here, because it's not just the secondary legislation that will follow under the bill, but also the guidelines, the kind of the soft law that comes out of things like the General Medical Council and other regulatory bodies advising their practitioners on how they address the various issues around this bill.

[00:26:12] And another subject for discussion was a conscience opt out. Doctors who don't believe in assisted dying, who are opposed in principle to it, shouldn't be forced to help patients through that process, but at the same time they were not allowed to stand in the way of patients going through that process either.

[00:26:28] The parallel was made repeatedly during the hearings about abortion law. So doctors who are in principle opposed to abortion can't just leave a patient dangling. I'm not prepared to deal with this, therefore you cannot have an abortion. I'm not prepared to deal with this, therefore you cannot go into an assisted dying process.

[00:26:45] Very similar sort of set of issues that come up and in a way I think that the way that the set of obligations and opt outs available to doctors on abortion looks as if it's going to be very similar to the ones that will be offered for assisted dying.

[00:26:59] Ruth Fox: There was also quite a bit of discussion over the first couple of days about what kinds of illnesses are captured by the clauses right at the beginning of the bill about terminal illness. Do patients who've got severe anorexia, are they captured, or diabetes. One MP has laid down an amendment to the bill to effectively exclude people with conditions of diabetes. And it was interesting listening to Chris Whitty that very often patients don't have one condition, but one condition might be terminal, cancer for example, but that in and of itself is not necessarily going to kill you straight away or in, you know, in six months time. But it's the constellation, I think he described it as the constellation of conditions together, which create the problem and might lead you to, therefore, a six month diagnosis. That's something that quite clearly a number of MPs are grappling with about how those clauses will work.

[00:27:44] Mark D'Arcy: And I think there was also a lot of discussion about this idea that a doctor can definitively say to a patient, you have less than six months to live.

[00:27:51] Ruth Fox: Yeah.

[00:27:52] Mark D'Arcy: It's quite clear that that's a ballpark figure, rather than an absolute, you know, six months from now you will not be alive statement.

[00:27:58] Ruth Fox: It's not a perfect scientific

[00:27:59] Mark D'Arcy: Yeah, and that the science, as you say, yeah, not perfect is a very good way of putting it.

[00:28:04] So quite a lot of interesting discussion around that area. And the later evidence also teased out a couple of points that may lead, when MPs start going through the bill, clause by clause, to some quite significant amendments. The bill, as it's written at the moment, has a process in which two doctors have to sign off on the patient being A), terminally ill, and B), mentally competent to take the decision for assisted dying.

[00:28:27] And then a High Court judge kind of rides shotgun over the process. And Jonathan Sumption, the former Supreme Court Justice, very senior, very eminent lawyer, was wondering about this. Is this just a box sicking exercise? And there are a whole load of questions about if you're going to require a High Court judge, an extremely senior judge, to be engaged in this process, and maybe 6, 000 people a year are going through it. That's an awful lot of judicial time, and there may just not be the capacity. for judges to get involved in this, so might there be a switch to, instead of having a High Court judge as the final arbiter of the process, to some kind of expert panel, perhaps including a retired judge, for example, a retired High Court judge preferably, and practitioners from palliative care and so forth who are all familiar with the issues.

[00:29:15] So, there may be a very significant change to the bill right there.

[00:29:19] Ruth Fox: Yeah, and you can imagine that the government is concerned about the capacity of the courts to manage this because we already know that it's, it's a problem. There was another suggestion from the panel, which included Nicholas Mostyn, who's a former High Court judge.

[00:29:33] He himself has Parkinson's disease. He's also a podcaster. You may know Mark, some of his colleagues on their podcast, people like Mark Mardell and Jeremy Paxman, who've all got Parkinson's and have discussed the issues and challenges that they face. It's a really interesting listen. But Sir Nicholas Mostyn is very much a supporter of assisted dying and would actually like it to be more, should we say liberal than this bill suggests. But he was suggesting that Sir Stephen Sedgley, who I think is the head of the High Court at the moment, had suggested that perhaps panels overseen by the Official Solicitor, consisting of former judges and former medical practitioners, would be a better option. So we'll have to see.

[00:30:11] I mean, this is going to come through, I suspect, in the amendment process later at Committee stage.

[00:30:15] Mark D'Arcy: Well, there are lots of amendments already flying about. A Conservative MP called Ben Spencer, who's a doctor, has been particularly productive in this area. And what we're still waiting for is any amendments to come out of the government, because big authoritative government amendments on some of these processes may be the big turning point for some parts of this bill, that the, you know, if the government wants this or that changed, that'll carry a lot of weight with MPs on the Committee, I think.

[00:30:40] Ruth Fox: Yeah, so as of the end of the 29th of January, so the day before we're recording this, there were 147, I think, amendments already tabled and there's obviously a long way to go because as you say, they're taking next week to consider the written evidence as well as reflect on what they've heard over the last few days.

[00:30:57] Amendments are coming in not just from members of the Committee, but from remember other members in the House can submit amendments for consideration as well. I think the thing to look out for is what amendments does Kim Leadbeater table herself? Yeah. Because, not all of them, but I suspect a significant proportion of them will prove to be government amendments.

[00:31:15] Mark D'Arcy: Yeah, they'll emanate from the government, but they'll have the, if you like, the added imprimatur of the, uh, the Bill's promoter on them. Which means that they're probably quite likely to be accepted, at least in the Committee stage. And this is one of the important things that people have to remember.

[00:31:29] This is one stage of a process. The Bill Committee, as people have been pointing out, has its membership chosen by Kim Leadbeater. She has included on it a number of people who are critics of her bill. But, uh, critics of her, say that some of the people that she's put on the Committee are not the strongest available critics of the bill.

[00:31:51] I don't think it's a requirement on her to load the Committee with people who are so deeply opposed to her bill that they then proceed to wreck it. I think some of the criticisms of her on the composition of the Committee are overdone, shall we say. And everything that's done in the Committee could be undone in the subsequent Report Stage proceedings.

[00:32:10] So if, for example, the Committee were to remove a High Court judge as the final arbiter of the process, it's quite possible that there'd be an amendment at Report Stage to put him back again.

[00:32:20] Ruth Fox: Yeah, yeah. And I think this opens up an interesting question, an interesting debate about what the purposes of these stages are, and what it is that the MPs thought they were voting for. Because opponents of the bill argue that MPs endorsed this bill, the principle of assisted dying, and the principal aspects of the bill. So the six month limit, the medical process, the assisted dying service, and as you say, this judicial check. If MPs at Committee stage change that, and went for something different, are they almost in breach, then, of that commitment at Second Reading?

[00:32:55] Because they're changing the bill. And if it's okay to change, for example, the provisions on judicial oversight, why is it then not fine to change the provisions about the six month limit and open it up to a much broader application? So, if you were an MP that was voting for it, and perhaps you had reservations, and you wanted to see the bill improved, in what, in what direction?

[00:33:16] This just sort of reveals some of the complexities of the process here. And what you've got is a essentially a legislative kite that the MPs, because not all the detail is there, can't be until we hear from the government in terms of some aspects of how this should work. How do you turn the legislative kite into a fully operational plane that can fly at the end of this process and how do you get there between the different stages.

[00:33:44] Mark D'Arcy: I mean the Committee stage will consider amendments, will look at changes to the bill, may make, as we've said, some quite significant changes. Report Stage is a chance for further changes to be made by all MPs.

[00:33:56] Any Member of Parliament can contribute to a Report Stage debate, can put down amendments there. It's then up to the Chairman of Ways and Means, the Senior Deputy Speaker, to select and group amendments, I think. And at that stage there's a lot of detailed debate around the key issues, and there are perhaps two groups of amendments to be considered.

[00:34:14] But then there's a further stage, there's Third Reading, and that is a stage that's become a bit vestigial recently, and certainly in government bills, Third Reading is taken at the end of a Report Stage, often without debate, really, you know. Five minutes to

[00:34:27] Ruth Fox: thank everybody who's helped get the bill to its stage.

[00:34:29] Mark D'Arcy: The minister thanks his producer and his director and his make up artist, or whatever.

[00:34:33] Ruth Fox: We're exaggerating slightly, listeners, but not a lot.

[00:34:35] Mark D'Arcy: Not a lot, but I mean, Third Reading it's become a pretty perfunctory thing. But in this bill you may end up with a bill that looks quite different to the one that was put before the House at Second Reading.

[00:34:46] And it may be a chance for people to change their minds. So there ought to be a somewhat more substantial Third Reading debate than you usually now get. Because this is a very special case in all sorts of ways. This is such a far reaching bill and there's such significance and such public attention to it that I don't think it can be the usual sort of rubber stamp done and dusted in 20 minutes.

[00:35:08] Ruth Fox: But we're going to have limits on time. Yeah, because the Report Stage take up most of a day, as we've discussed on the podcast before, you've got this sort of deadline when the bill needs to come out of that stage in order to have it time to go to the House of Lords for scrutiny before the end of the session, if it's going to get onto the statute book.

[00:35:27] And this is where I think questions about Government providing more time to facilitate that final stage of debate may well come into play.

[00:35:34] Mark D'Arcy: There's always an argument about there isn't much legislative time, it must be rationed. If you look at the parliamentary timetable for the weeks ahead, it's studded with general debates on this and that.

[00:35:44] And I think MPs, given the choice, would want time for a decent Third Reading debate on this bill. And should be given it, frankly. And I think it is extremely dangerous for the reputation of the House of Commons not to do this. This is more significant than almost any other measure that's likely to be passed in this Parliament. So, heaven's sake, give it the headroom.

[00:36:03] Ruth Fox: Yeah. Well, we'll see what happens. But what did you make of the process? Because this is the first time we've had witness evidence for a Public Bill Committee stage for a Private Member's Bill. It normally never happens. you know, some concerns about whether the process and the format was really very helpful.

[00:36:20] Mark D'Arcy: I think a lot of the witnesses were kind of a bit surprised that they found themselves in a partisan crossfire. This is a point you've made frequently on this podcast, this is not the same as giving evidence to a Select Committee where it's very much a kind of inquisitorial process rather than a partisan process if you like. There are people who are very for this bill, there are people who are very against this bill. The witnesses fall on one side or the other of that divide and one side or another of the Committee is therefore having a go at them That said they were good witnesses. There were a lot of very interesting things said. There were a lot of people from the palliative care industry who talked at length about the lack of enough palliative care. That people were kind of cornered into assisted dying because there wasn't a palliative care system that was good enough to keep all of them in reasonable comfort otherwise.

[00:37:07] That was an issue that is not dealt with in the bill, but is extremely germane to the bill. It's kind of the context, rather than the actual content of the legislation. So it was a slight stretch in normal Bill Committee procedure for that discussion to take place. It was quite important that it did take place.

[00:37:23] Ruth Fox: Yeah. Some of the witnesses we've, we've heard via their comments on social media. And I think some of the witnesses have sort of talked about that concern about the partisan nature of it, for example. So there was a Professor of Psychiatry from the University of Leeds who gave evidence and he said afterwards, "frustrating format and sense of minds made up, but interesting to be told by Kim Leadbeater that I don't understand suicide in life limiting illness."

[00:37:47] And Dr Rachel Clark, who has got some celebrity on social media, shall we say as a doctor during the COVID period, said, "gratifying to see how engaged and serious the committee was, apart from one MP who yawned and openly scrolled on his phone whenever the evidence bored him." I have to say, as somebody who's given evidence to committees, lots and lots of committees in both Houses over the years, that is a sentiment I have quite a lot of sympathy with. Because there is nothing more annoying than sitting in a committee, having prepared the days before and let's face it, any good witness who's doing a professional job will prepare for these things, they put a lot of effort in. To basically feel that as soon as the MPs ask their question, that's it, they've kind of switched off. And you look around the table and all you can see is them fiddling with their phones. There is nothing more annoying and frustrating. Never happens in the House of Lords. I've never had that experience in the Lords. regularly have it in the House of Commons.

[00:38:44] Mark D'Arcy: I suppose there is just the possibility that they were fiddling through their phones to look at some reference that they wanted to check before asking a question.

[00:38:51] But I think a lot of MPs are haunted by the occasion a few years back when there was a Select Committee and someone was visibly playing Tetris on their phone during the evidence taking and, uh, the general public was not amused, and rightly. Yeah, you're there to do a job.

[00:39:06] Ruth Fox: Yeah. Well, I did wonder also what some of the international witnesses thought who were joining the session on Zoom, and it all got interrupted when the MPs suddenly had to go and vote.

[00:39:15] And I've also been there where the MPs suddenly have to leave. I remember being stuck in the Administration Committee for nearly an hour whilst the MPs voted, and in the end they didn't come back enough of them, so it wasn't quorate and effectively it got suspended. But I just wondered if, you know, if you were from America and Australia and all of a sudden you were sat waiting in suspended animation, what they must have thought.

[00:39:37] But I think one of the things that came through, it was a very tight timetable. It did feel quite rushed. Some of the witnesses didn't have perhaps the time that they would have liked to have expressed themselves. They were under considerable pressure. The chair occasionally had to keep intervening to say, cut them off and say, you know, we need to move on both the MPs and the witnesses. And, um, sometimes some of those exchanges became a little bit testy and didn't show perhaps the committee process at its best.

[00:40:03] Mark D'Arcy: Also I think it's worth saying that you get the impression that Kim Leadbeater is feeling the heat a bit. Yes. I mean, there have been times when she sounded awfully defensive, which is not surprising because she's been under fairly withering attack on social media for quite a lot of the time.

[00:40:18] Ruth Fox: Yeah.

[00:40:19] Mark D'Arcy: But all the same, I think that that's something that's become rather noticeable.

[00:40:23] Ruth Fox: Yes, I mean, there was a feeling, I think, my sense that she was sometimes a little bit dismissive of witnesses who didn't quite agree with her position. She's got this bill, she's obviously put a huge amount of work into it, she wants it to go through.

[00:40:36] But you do get that feeling of a real sense of defensiveness. Much like you find with government ministers. They've presented their bill to Parliament. That's it. They're kind of defending it to the hilt.

[00:40:46] Mark D'Arcy: That's it in the House of Commons. Yes. They're kind of defending it to the hilt. I mean the fun bit is that the amendments that they've resisted tooth and claw in the Commons are sometimes freely conceded in the House of Lords later on.

[00:40:57] But that's show business.

[00:40:59] Ruth Fox: And she raised a number of times points of order, which we don't normally see in committee. I understand that. Why she perhaps was doing it, but I think perhaps she needs to think about how it looks externally.

[00:41:11] Mark D'Arcy: I do think it's also worth saying that kim lebed is it's a pretty new MP. She hasn't been around all that long and this is probably one of the most - longer than most - It's a very new Parliament, but even so she's not a sort of experienced backbencher with 20 years to her credit in the chamber. And this is one of the biggest things that will happen in Parliament in the next few decades.

[00:41:33] So it's a pretty serious thing that she's got landed on her. No one should pretend this is easy.

[00:41:39] Ruth Fox: Oh, absolutely not. But the other thing that came through, I think, is this isn't a dialogue, these evidence sessions. You know, there were clearly points at which some of the MPs wanted to go further and sort of interrogate the witness a little bit more in terms of the detail. Or had questions that they wanted to put, they couldn't. I was very struck by one witness, for example, and I think he was a disabled researcher, and he asserted that most disabled people supported the bill. Well...,

[00:42:02] Mark D'Arcy: How do you know?

[00:42:03] Ruth Fox: Yeah, I mean, and there wasn't kind of that opportunity to sort of interrogate that and say, well, what's your basis for saying that?

[00:42:09] Because that's a big claim. You know, is there particular research he's referencing or what? What might be a better model? You need more time for it, but that you sort of divide up the bill into the sections that you're looking at and you want all the people who can speak to those sections at once and to have almost - you know, maybe I'm being too academic about it and have sort of, you know, a seminar where you kind of have the round table discussion and interrogate it.

[00:42:33] Mark D'Arcy: I'm not sure when you watch this in action that it looks like the best way to do what they're trying to do.

[00:42:38] Ruth Fox: No.

[00:42:39] Mark D'Arcy: A slightly more relaxed process, rather than the full formality of witnesses and a Committee and a horseshoe around them, might actually get more out of them. But this is a very formal, kind of frozen process.

[00:42:51] Ruth Fox: I've always said that the very process of calling, calling those of us who give evidence witnesses implies a

[00:42:57] Mark D'Arcy: Court of law.

[00:42:57] Ruth Fox: Yeah, and that's not what it's supposed to be, though sometimes it can feel like it.

[00:43:01] Mark D'Arcy: And sometimes the witnesses are treated a bit more like a prisoner at the bar.

[00:43:06] Ruth Fox: So, after the conclusion of the final day of evidence this week, um, as you said, MPs are going to take a week now to consider both the oral evidence and the written evidence.

[00:43:17] I understand that they've received a huge volume of it. They've begun to publish it. So for listeners, if you want to have a look at what the submissions say and who they've come from, you can find that on the bill page on the Parliament website. We'll include a link in the show notes. Apparently there's so much of it that they need extra time to consider it and therefore more time to consider crafting of amendments to address some of the issues that it gives rise to.

[00:43:39] Mark D'Arcy: And we'll take a look at those next time.

[00:43:41] Ruth Fox: Yeah. So, uh, for now Mark, I think we'll finish there and, uh, we'll see you, uh, see you next week.

[00:43:46] Mark D'Arcy: See you next week. Goodbye.

[00:43:48] Outro: Bye.

[00:43:51] Parliament Matters is produced by the Hansard Society and supported by the Joseph Rowntree Charitable Trust. For more information, visit hansardsociety.org.uk or find us on social media @HansardSociety.