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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.

Ruth Fox: Welcome to Parliament Matters, the podcast about the institution at the heart of our democracy, Parliament itself. I'm Ruth Fox. And at this point, if you're a regular listener, you'll know I'm usually joined by my partner in parliamentary podcasting, Mark D'Arcy, but today, Mark's indisposed, so I'm flying solo for the very first time.

I've promised him I'll do my very best not to ruin the pod's reputation. Each week, Mark and I unpack what's been happening in Westminster and explore ideas for making our democracy more effective. But it's been a relatively quiet week in both Houses of Parliament, so with Mark away, I'm focusing on just one key issue : the assisted dying bill.[00:01:00]

The Terminally Ill Adults (End of Life) Bill, to give it its proper title, is about to undergo detailed scrutiny by the Public Bill Committee, a group of 23 MPs tasked with examining the Bill's text and proposing amendments to improve it. Although the committee hasn't been sitting this week, its members have been busy reviewing over 100 submissions from experts and the public, as well as reflecting on insights from last week's oral evidence sessions.

They've been using all this input to draft amendments which will be debated when the committee reconvenes next week. But how exactly does this mysterious amendment process work in a public bill committee? To demystify it, I'm going to be joined by our resident Parliament Matters procedural guru Paul Evans, a former senior clerk in the House of Commons and a long standing member of the Hansard Society.

And then later we'll hear from Ben Spencer, the Conservative MP for Runnymede and Weybridge, who before entering Parliament in 2019 was a [00:02:00] consultant psychiatrist with a PhD in decision making capacity. Under the current draft of the Assisted Dying Bill, he'd actually qualify as a medical expert assessor for any individual seeking an assisted death.

Although he's not one of the 23 MPs on the Public Bill Committee, that doesn't stop him tabling amendments, and so he has 36 of them at the last count. One of his key proposals is to establish a new body, the Assisted Dying Agency, to oversee the process. So I'll be talking to him about why he's championing these amendments, and how he plans to influence the bill's progress, even from outside the committee.

But first, I'm delighted to be joined on the podcast again by our procedural guru, Paul Evans, who's joining us down the line from Wales. Paul, welcome to the podcast again. Thanks for joining me. We wanted to talk to you about the process now for amendments. Now the bill is, uh, is going to be looked at by MPs next week, getting down to that, uh, what they call it, line by line scrutiny.

We'll see. But can we start [00:03:00] by unpacking what the process is? What is a public bill committee? What's its purpose?

Paul Evans: So public bill committee is a smaller body of members appointed by the House to go through the bill in detail. Sometimes, and historically, generally, the House turned itself into a huge committee and took the bill through a committee stage.

For a long time, and for most bills nowadays, they delegate that function to a smaller committee, which they appoint. And the line by line scrutiny is a bit misleading. It'd be better to call it really clause by clause scrutiny

Ruth Fox: Mm hmm

Paul Evans: That committee, it's the most open ended part of the scrutiny process. It has to go all the way through the bill and each clause that's there in the bill, even if it doesn't amend it, it has to stand part, and that's a residue of the good old days when actually empty bills were sent to committees and the committees had to write them.

They had to write a clause and then agree it. But nowadays the bill is already written, the committee's job is to agree [00:04:00] each clause or not agree each clause. There are also things called schedules, which come at the end of the bill, which usually have more detailed stuff in them.

Ruth Fox: I always think of schedules as a bit like an appendix.

Paul Evans: Yes, it often is. It's where you've got a load of very detailed stuff that you want to shove in, which would interrupt the narrative of the main bill, in a sense. And you can add new clauses and indeed new schedules to a bill in committee. So the committee has to go through every clause and consider every clause, however briefly.

And it may amend each of those clauses and then add them as amended to the bill.

Ruth Fox: So what are the sort of general rules for a public bill committee, the sort of procedural rules that dictate how this will work?

Paul Evans: Well, I think if anyone wants to go and look at the committee and process in which they'll go through in due course, it'll be quite different if they were used to looking at select committees. It's much more formal. The rooms that they are generally taken in, these committees, are like miniature versions of the chamber, with the opposition versus the government sitting on these benches. Although in a private member's bill, now [00:05:00] opposition versus government is less clear.

They can sit where they like. And on a dais at the end is the chair of the committee, who, like the Speaker in the House, but unlike a Select Committee Chair, doesn't participate in the proceedings other than to direct and guide them and rule on them. And next to the Chair you'll see on one side the Clerk of the Committee who's advising the Chair and keeping the records, and then also Hansard reporters and other officials.

And the member in charge of the bill, which would normally be a minister, but in this case is Ms Leadbeater, has got to propose each clause in turn to be moved. However, there will be amendments to those clauses, so before she can propose the clause stand part, the amendments will have to be dealt with.

That is a complicated business. Now, as of today, Thursday, we have 300 or so amendments down and some new clauses. The committee goes through the bill from one to whatever through the numerical [00:06:00] clauses in that order. And the amendments are taken in the order in which they appear in the bill. And at the end of that process, you consider new clauses and new schedules.

Now that sounds quite logical and straightforward, but it's made complicated, but improved, by a process called grouping and selection.

Ruth Fox: Yeah, so what is this mysterious bit of the process? This is where seasoned observers like me lose track of what's happening.

Paul Evans: It is quite logical, but very complicated, and it's a bit more of an art than a science in some cases.

But what it essentially is, the chair of the committee has been given by the House the power to choose which amendments are debated, and an extension of that power is to group them for debate. Now, there will be some amendments which the chair says we're not going to debate. They're out of order. They're beyond the scope of the bill.

Or they require money which hasn't been provided, or something like that. So the chair may cross out some amendments effectively and say we're not going to debate those. Most of them, probably, [00:07:00] will be selected. And having selected them, on the advice of the clerk, working with a team, they will be grouped for debate.

And the purpose of a group is that instead of repeating the arguments, same arguments over and over again as you go through each amendment, you put related amendments together, you have one debate on all of them. You're able to cover the alternatives and pros and cons of each of it. And then you make a decision about all the amendments in that group effectively, though it's a bit more complicated than that.

But it's basically to make debate more efficient, and more sensible, and less boring. Because otherwise you'd have to keep coming back to the same point over and over and over again. There are three types of groups, essentially. The first one is where you have two incompatible amendments about the same thing.

And that's fairly obvious. You have to choose between them. You can't have both. So you put them in a group, the chair puts them in a group, the committee debates them, considers the pros and cons and so on, and then eventually votes on them. If it chooses the first one, the second one falls because it's incompatible with what committee has now decided.[00:08:00]

If it rejects the first one, it can have a vote on the second one, and if that falls, then the whole group falls with it, normally. So that's an obvious way that you need to agree, but if you've got two things trying to do, address the same issue from different directions, you want to be able to debate the pros and cons of all those alternatives before you make a decision about them.

A slight variation on that, um, but an obvious one, is that you have groups which are simply connected. So you have a proposal, it might be a new clause, it might be an amendment, and as a consequence, if that amendment is made, throughout the rest of the bill, there'll be a whole series of little things that have to be changed in order to line it up with the change you've made further up the bill.

Ruth Fox: They're the sort of consequential changes that arise from that amendment.

Paul Evans: They're consequential amendments. And if you look at the amendment paper that's published each day before the committee is sitting, it's got some very useful things called note by members under each amendment. And a lot of them, if you look at the paper, [00:09:00] say this amendment is consequential on amendment 187 or whatever it is.

So where you have a whole string of consequentials, you take the lead amendment, you decide on it, and if it falls, all the others fall with it. If it stands, all the others stand with it. And normally, a committee, unless it's being badly behaved, will take it for granted that all those other amendments are agreed to, without bothering to vote on them.

And to some extent, those two groups I described, the alternative amendments of the consequentials could be mixed up, and you'd have a long string of consequentials. And then the third kind of group, which is a bit more vague, is one which is about the same general topic. It isn't technically proposing incompatible amendments or consequential amendments necessarily, but it's a group of amendments about the same kind of thing, about the same issue.

Ruth Fox: So it could be a group of amendments about, I don't know, coercion, or it could be a group of amendments about how this is going to be provided by the NHS, related content wise.

Paul Evans: Yes, and whereas the first two I described [00:10:00] sort of choose themselves to an extent. That kind of related group is more of a choice for the chair, and it's quite, sometimes quite complicated.

Now in grouping, what the chair is doing is trying to make the passage of the debate efficient and comprehensible. They're trying to be helpful. So having discarded any amendments they consider out of order, they put them all in groups. Now the complicated thing for the observer, the lay observer, is, let's take an example of a group where the key issue is in a new clause.

Let us say, extending the right to seek assisted dying. That's the nub of it. But there are a whole series of changes that they would have to make through the bill to make that effective. And the group, because it's in the order in which amendments appear in the bill, may start with some ridiculous amendment which goes like, before sub paragraph three, insert B.

Because that is a consequential amendment to the new clause which appears right at the end. But there's a whole group. So, the [00:11:00] committee will appear to be debating insert B in such and such a clause, but they're actually debating the whole group. That's fine. Now, when it comes to the vote, they will vote on insert B, if they want to, they don't have to, if it's essential to the new clause.

And if insert B falls, the new clause falls with it, so you don't get a vote on that. So, what is quite difficult to understand is that the lead amendment in any group, may seem very trivial or unrelated, but because you have to go to the bill in the order in which they appear, and because you can't go backwards in a bill, that's one of the fundamental rules.

You have to do the consequential amendments, potentially, before you do the nub of the amendment that's key.

Ruth Fox: This is only for the voting? This is not for the debating?

Paul Evans: No.

Ruth Fox: You can debate the nub of the issue, but the vote will actually potentially be on the consequential first.

Paul Evans: Exactly. And that, the key issue is this bit about going back in the bill.

So logically, if you were just doing this [00:12:00] at home with the family, you'd agree the big principle and the new clause first, then you go back and cross out and fill in all the bits, subsequently, that followed from that new clause. But you can't do that in a bill because you can't go backwards. So you have to do it all in which it appears in the bill to start with.

Ruth Fox: So as you said at the beginning, this is, this is more an art than a science. The chair is doing this. There's been, what, four or five chairs appointed to this committee because it's going to go on for so long. What will happen? Will they be meeting sort of tomorrow, Friday, Monday of next week before the committee sits on Tuesday?

Will it be one chair in the lead on this? Or will they do it as a group? How does it normally work?

Paul Evans: They will have to decide between themselves, really. They could appoint a lead chair to do all stuff and agree to allow his or her decisions to stand for the rest of them.

They could meet as a group. They probably will meet once at least, if only informally, before this starts so that they can sort these things out between themselves.

Ruth Fox: Yeah.

Paul Evans: Now, in fact, grouping, as I've described it, quite a lot of [00:13:00] grouping is technical. And then there's some political judgments. So much of the work will be done by the clerk. And they will propose groups, some of which are self evident and don't really raise any issues. And then they will draw to the attention of the chairs, those where there's a judgment involved.

And particularly a political judgment. And that will also include where they recommend that something is ruled out of order. That will be sometimes utterly straightforward and sometimes it will require quite a fine political judgment. And they'll say to the chair, here are the arguments, you make the final decision.

Ruth Fox: What kinds of things would put something obviously out of order?

Paul Evans: It probably won't apply to this, but the easiest one to apply is money. If something involves money that hasn't been permitted, but the money resolution, which this bill now has is generally quite broadly drafted, so that's unlikely to be an issue.

The next most common one is scope, and that's much more of a judgment. You can't add [00:14:00] purposes to a bill which the bill on second reading didn't envisage, unless they're very closely related to the original. It's that question of how closely related they are. It's really a judgment call. And you might take, for example, the bill very clearly includes only organic physical illness with a terminal diagnosis, etc.

And there's been a lot of debate about mental anguish and other issues which come up in other jurisdictions. If someone put down a new clause, putting in mental anguish as a criterion for applying for assisted dying, the chair would have to make a quite a difficult decision about whether that was closely enough related to the bill as passed on second reading for it to be admissible. So that's another one.

And then the third one which again is very straightforward is where well where the amendment doesn't make any sense grammatically, intellectually or where it and this is more often where they trip up or where it doesn't have the necessary [00:15:00] consequentials So if it was made to the bill, the bill would become incoherent because the member who's tabled the amendment hasn't gone through the bill and made all the consequential changes that would be needed if it were agreed.

Ruth Fox: So actually the chairs in this case are going to play a really important role. And my understanding is that they then don't take part in later proceedings on the bill precisely because they've been involved in making these quite fine procedural and political judgements.

Paul Evans: Yes, they are sort of excluding themselves from later proceedings by chairing this very generously.

It's an act of service to the house.

Ruth Fox: Yeah, it's going to be a lot of work and it's very difficult work. Should we turn then to how this is going to work next week in the committee? So one of the the big issues that surrounds any piece of legislation, but particularly this because it's a private member's bill and everybody is looking to the date in later April when this bill really needs to come out of committee in order to have its next stage debate in time for it to go to the laws before the end of the session because there's [00:16:00] only a certain number of dedicated Fridays, uh, 13 of them over the course of the session when private members bills can be considered.

So there is, there is a time constraint here. So what happens in the committee in terms of going, clause by clause, uh, an amendment is selected for a clause, has to be debated. What are the rules on how long the debate goes on for and, you know, whether or not a vote is, is, is held? You know, is it going to be a formal, does it have to be a formal division for every amendment or will it be done on voices?

What, you know, what are the rules around that?

Paul Evans: Well, not every amendment will be voted on, that's for sure. This is where grouping becomes crucial, the group that we've just been talking about.

We've done the selection, we've made groups. On Monday evening, we will discover how many groups have been chosen, selected by the chairs.

And that will give us an indication of that. Now, my own very [00:17:00] sketchy view is there aren't possibly that many groups, and it could come down to somewhere between half a dozen and a dozen. And the point about groups is once you've disposed of the lead amendment and you have the debate on all the other amendments, some of those amendments within the group will fall and won't be even called for a voice.

Many of the amendments are consequential on a decision that's already been made, and it would, you could vote on them, but it would be very, very obstructionist to do so, and the chair will get very impatient with you if you try to. And then other amendments, which may not fall into quite those categories, cannot be debated, but they may be called for division, and that is the chair's choice.

Essentially, the chair doesn't have to call all the amendments, and if he thinks that some amendments, they've been debated, they've clearly not commanded a majority or that, and he deselects them effectively, subsequently, and doesn't call them for a vote. So, that reduces, very significantly, the [00:18:00] number of votes that can take place.

Debate and vote. Votes in public bill committees are much quicker than they are in the House. They're done by roll call, so they only take a minute and a half or something each. So that's not so much of an issue. So if we had 12 groups, we're essentially looking at 12 debates. How long will those debates be?

Well, the groups may be of different density and value. One of the things about a committee which is distinct is that members can speak more than once. The rule in the House is you can only speak once to a Question in one debate normally so they can speak more than once if the chair calls them so the debate can go round and round quite a lot and one of the advantages of groups is the chair can bring into line if a member starts straying into things that have been ruled out of order or as completely outside the group. They can just sit them down. So, you're not talking about, this isn't in this group.

Nothing in these amendments, which, is, your speech is relevant to So if they just keep repeating arguments, they [00:19:00] could in theory sit them down.

Ruth Fox: So this is the challenge, this is the challenge to the prospect of filibustering, that many, many proponents of the bill are concerned about. That the opponents on the committee will just try and talk at length, be repetitious, and just try to run out time.

But actually there are ways to stop that. And one of them is that the chair can intervene if they're being repetitious and obstructive.

Paul Evans: Yes, and if they are being repetitious and obstructive, even if the chair is trying to discourage it and being firm about it, there is something called the closure.

Normally it would be the member in charge, Ms Leadbeater, who would decide at some point, and she'd probably have a word in the ear of the chair before she did this, if she could, to move what's called a closure. So let's suppose we've had a group of amendments and we're on the third sitting at which they are being debated, we still haven't finished that debate and we've had three sittings. And it's become clear that the people talking are doing it more to kill time [00:20:00] than to add to the sum of human knowledge. She can move a debate for the questions to be put. That brings the debate to a sudden end and there has to be a vote.

She can move that and the chair's decision about whether she's allowed to move that closure Is final and it's entirely theirs, and they can refuse to allow it. You can come back after refusal and try again and try again, but if they allow it, there's a vote. If there's a majority, which is at least equal to the quorum of the committee, which is eight, so at least eight, but the majority of the committee vote for the closure, then the question is immediate.

But that debate comes to end. The debate on that whole group is finished.

Ruth Fox: Mm-hmm .

Paul Evans: So filibustering isn't allowed, it's not encouraged and so on. It's. It's quite difficult to control for the chair. A firm chair can do as well as they can, but it's not always possible. But it's also counterproductive, probably, because this committee is open ended.

The chair will be conscious of, you know, what's a reasonable time to spend on these issues. [00:21:00] Um, the general will also be conscious of people just repeating arguments and the closure is the weapon which stops that because the closure isn't just on one amendment, it's technically on one amendment, but it's effectively on the whole group.

It ends debate on the whole group. So if you had six to twelve groups, as I predict you might, you'd only need six to twelve closures. if necessary, to get to the end of them.

Ruth Fox: But conversely, if Kim Leadbeater were trying to sort of move this on more quickly, you know, if there was only an hour or two of debate, she could try and move the closure, but the chair might feel, actually, no, there hasn't been sufficient debate, there's other people who want to be called, we're not having that, and would deny that.

the option for the closure to be put and the debate would carry on. So, you know, there's a balance to be struck about if and when she calls for it.

Paul Evans: It should not be used oppressively and the chair will not allow it to be. The first rule for the chair is has everybody who stood up and indicated they wanted to be spoken at least once [00:22:00] and not at length.

Ruth Fox: Can anyone else call the closure on the committee or is it just the bill sponsor?

Paul Evans: No, no, anyone can call it.

Ruth Fox: On the podcast after you, I'm going to be talking to Ben Spencer, who is an MP who's not on the Public Bill Committee, but has tabled several dozen amendments to the bill that he'd like to see introduced.

How does that work, that members who are outside of the Public Bill Committee can be putting amendments down on the papers? You know, what's the prospect of them getting their amendments chosen? How does that work?

Paul Evans: The prospect is slight. Any member can table amendment to a bill that's in committee. They don't have to be on the committee to do so.

But they won't be called, because they can't be, because they're not on the committee, to move it. How they would be moved would be if a member on the committee picked them up, as we would say. In other words, they sign the amendment, they add their name to the amendment, tabled by the external member, and then they take charge of it on their behalf and move it in committee.

And that happens. [00:23:00]

Ruth Fox: Yeah, well that's happened to some of Ben's, so I'll find out from him whether he's got all that lined up.

Ministers, so this is the interesting bit. Ministers, we know that the government is going to have to make some decisions about if the House supports this bill, how would they operationalise it, both in terms of the, the health system side of the bill's requirements, but also the criminal justice system's requirements in terms of the provisions for judicial oversight or some other form of, of oversight panel that would apply.

But the government's position officially is it's neutral. But it also has a, as we heard last week from Dame Elizabeth Gardner, who drafted this bill, former First Parliamentary Council, former Chief Government Draftsperson, she's now drafted this bill for Kim Leadbeater, they have a duty to the statute book.

So they, they have to ensure that any sort of technical or legal tidying up is done, in addition to any sort of decisions that have to be made about bigger [00:24:00] policy matters to, to operationalise the bill. How are government amendments therefore going to come forward? And are they more likely to come forward at committee rather than the next stage at report when the bill goes back to the chamber?

Are we likely to see the two ministers on the committee who are Sarah Sackman from the Ministry of Justice and Stephen Kinnock in the Health Department? Are they going to be moving the amendments or is that going to be done by, by Kim Leadbeater herself?

Paul Evans: The ministers could table amendments in their own name and could be called to move them. Quite likely, because they will negotiate with the member in charge if these are essentially tidying up amendments as you were talking about, making sure that whatever the provision is it would work in law, then they will negotiate them with the member in charge and the more obvious route would be for the member in charge Kim Leadbeater to move them herself, sign them and move them herself, even though they've been drafted by the ministers. Ministers could, but that would be I think unusual rather than common, [00:25:00] but it might be that it's possible to conceive of a situation which ministers have a change they want to make which Kim Leadbeater for some reason or other, I think she'd be unwise to do so, but for some reason or other wants to resist, and in which case the minister would be free to move their own amendment and have it called and debated.

Ruth Fox: And what's, what's the politics at the amendment stage? Because, um, I mean it's been suggested that, for example, MPs are going to have to decide whether they actually want to push their amendment proposal to a vote, that actually if an amendment were rejected, uh, in committee, it couldn't then be revisited by MPs at the next stage when the report stage when the bill goes in back to the chamber for consideration.

Is that accurate or is it a bit more complicated than that?

Paul Evans: It's a bit more vague, I would say, than complicated in a sense. Um, it was certainly, and is a sense that, issues that have been thoroughly considered in committee and lost should not be revisited at Report because you're just wasting time [00:26:00] in a sense.

That's obviously a slightly government bill sense because, you know, if the government has defeated an amendment in committee, it's going to defeat amendment at report because it's got the majority. So that argument doesn't apply quite directly to a private members bill where the voting patterns are much less predictable.

So it'll be a more difficult choice in a way. And I think, at report, the Speaker of the House does exactly the same job we've been describing the chair of the Committee doing, selects and groups, and they will be inclined to know that there are some key issues, which remain at the heart of the debate.

And they will probably want, everybody in fact probably will want them to be decided one way or the other. So, it's not a direct read across. There may be a lot of trivial little amendments, not trivial necessarily, but minor, and um, you know, rather fiddly amendments that have been tried out in committee.

And if I were [00:27:00] advising the chair in the house, I would say, so unless there was a clear sense that these were important, don't select them. The committee's dealt with them, it's been debated and so on and so forth. But I think for the nub issues that are in this, the Speaker will be inclined to want to make sure that on report, those nub issues are decided by a vote of the House, if the House wants to vote.

But it is quite, again, it's a complicated science and it's quite a judgement. If you have thrashed out a hopeless cause in committee at great length, you should expect not to have another second chance on it.

Ruth Fox: A good rule of thumb.

Paul Evans: If you had a sensible debate, sensible debate, even if you've lost the vote, you might have a reasonable chance of re running that debate in a slightly, it would be helpful if you did it in a slightly different and more sophisticated or, you know, in a form which took account of what had happened in committee and what had been said on both sides.

Ruth Fox: So taking account of the concerns that the opponents have expressed and trying to win them over. Yeah. Okay. Well, with that, Paul, thank you so much for joining us. I [00:28:00] think that was, uh, really helpful. Hope all our listeners who will be watching the committee next week, hope that helps them, uh, understand this, uh, somewhat mysterious process.

And we'll no doubt get you back on the pod for the next stage when, uh, when we get through these committee sittings and find out, uh, what amendments are made to the bill.

Paul Evans: I look forward to it. I often think we ought to have football style running commentary on Parliament soon.

Ruth Fox: We once did, Paul, if you remember, when Mark and I used to do football style commentary on the Brexit votes on BBC Parliament, but unfortunately the BBC nixed that, so hence you've got the Parliament Matters podcast as an alternative.

Unfortunately, I don't have the time to do this football style commentary every sitting, but we'll be keeping an eye on it. Great, thanks ever so much, Paul. We'll see you soon.

Paul Evans: Bye.

Ruth Fox: That was Paul Evans, former Senior Clerk in the House of Commons, breaking down the amendment process for us. So with that, I think we should take a short break to recover after the, uh, deep dive into procedural nerdery.

But before we [00:29:00] do, can I ask a favour? If you're enjoying Parliament Matters, would you rate the podcast and share it on social media, please? Personal recommendations are the best way to help us grow our audience. So while you do that, I'll be back in a minute with Dr Ben Spencer MP.

Well, welcome back. And I'm delighted to be joined on the podcast by Dr Ben Spencer, Conservative MP who, before arriving in Westminster, was a consultant psychiatrist with a PhD in decision making capacity. And Ben, he's not on the public bill committee that's going to be considering the assisted dying bill next week, but he has been busy in recent days tabling dozens of amendments to the bill and hoping that these will be considered by the committee in the coming weeks.

So Ben Welcome to the podcast. Thank you for joining us.

Ben Spencer: Hi.

Ruth Fox: And, uh, as I understand it, you, you voted against the bill at second reading. You, in fact, were one of the people who tabled the reasoned amendment, setting [00:30:00] out your views as to why you thought the House shouldn't give the bill a second reading.

But you're not, in principle, opposed to assisted dying. So can you explain your, your views on the, on the bill?

Ben Spencer: Well, thank you. And thank you for bringing me on to the podcast. So on a sort of core point of principle, I very strongly believe that people with full decision making capacity should have their autonomy respected, so to speak.

Now, there's lots of heavy caveats. When you start talking about capacity, it's important that capacity is always contextualized by situation and resources and society, limits that people on society. And we don't live in a what people say goes sort of world, nor, nor should we, but from a sort of libertarian point of principle, that's my starting point, and I've been on a bit of a journey because if you'd asked me about 10 years ago, what do you think about this sort of legislation and putting out something like this? I would have been quite very full, very gung ho, probably is the way to describe it about it. And that was before I'd done, you know, more extensive psychiatric training, done my PhD in capacity, um, had a [00:31:00] bit more experience around treatment to health and some of the complexities around this.

And where I'm very much now is that's created huge concerns around the complications and the implementations and the challenges in this area, particularly with the interaction with mental health and some of the stuff around mental capacity. The problem with this bill, in particular at second reading, is that the vote wasn't a vote in principle at second reading.

Do you agree that people, however we define them, should have the ability in certain circumstances, however we define that, with certain safeguards, however we define that, to choose to have what is being termed assisted death or, I, I prefer the term physician assisted suicide, but I've started using assisted death because it's the language everyone's talking about, but I think actually physician assisted suicide describes it more, more precisely what that vote was, was a vote.

Um, on the second reading on this bill, was a vote, on assisted dying, physicians [00:32:00] assisted suicide, as implemented in the bill with the knowledge that there's going to be quite limited ability to really structure and change the bill. So from the start, it's about terminal illness. It's not a general right for everyone over the age of 18.

There wasn't the ability to have a bit more of a detailed ideological and moral debate around the principle. I think there's, there's a big problem with the private members bill process in terms of doing this sort of legislation. Other jurisdictions have reviewed areas of law in great detail, come back with very fleshed out approaches or suggestions of different ways you can go about legislating in this area. And what we have now is a process in which that hasn't happened. I think there's still a desperate need for that. We've seen from all the evidence in committee that went through last week, a whole host and range of different challenges and questions which are thrown up.

And I'd say pretty much every single day I'm hearing more stuff and more complexities around how this would work in the UK and some of the issues and what I'm saying is, you know, it's absolutely right Parliament should debate this. What people really want is they want [00:33:00] scrutiny and for that we need we need the work to be done behind this and so we should do it properly with some sort of review or commission on this and then we can have a sort of informed sensible vote and I still wish and hope that process happens. So the reason the amendment I put down with some colleagues regarding the second reading was basically to say look, this isn't about yes or no for assisted dying, physician assisted suicide, this is saying we do need a debate and vote on it, but let's commission, research, consultation on it first, so we can have this debate and scrutiny properly in terms of what this looks like in, in reality.

Ruth Fox: And that's what you're trying to do with your amendments. So you were not appointed to the Public Bill Committee, did you put yourself forward? Were you hoping to be on it?

Ben Spencer: So I very much was hoping to be on it, and I did request, uh, to be put on the committee, but like, you know, look, when the second reading happened, you know, obviously I was disappointed with the results, but I said, you know, I would work constructively to put some amendments to try and get the bill as good as it could be.

And I focus very much on areas where I [00:34:00] think I can add value, particularly around the operation of the Mental Capacity Act, some of the issues around conflicts of interest and around mental disorder and use of the Mental Health Act. And also to tackle some of the issues within the bill, which I think are fundamentally inherently, ideologically sort of confused or discriminatory, um, as I said in my speech on the day.

I mean, there's a few paths we can go down in terms of this discussion of the bill, but from the outset, I think one of several core problems of this bill is that there is a fundamental ideological incoherence or discrimination of it, because if you limit access to physician assisted suicide to terminally ill adults, however defined, however defined, you're essentially saying one of two things.

You're either saying that the respect for autonomy or autonomy rights, as I call it, so it's a bit of a rubbish phrase, but it's what I'm using, the autonomy rights of those individuals is greater than other people, or you're saying their lives are worth less. [00:35:00] In the context of safeguards and protections and that is inescapable and it's also why in other jurisdictions there has always been the expansion of a scope of who can access such services when these laws have been put in place because if you say no one can have something then the courts can't go anywhere with that.

But if you're saying, well, actually this group of people can have something, this group of people can't, we're going to explain why this group of people have, and we're going to also, when you add in protected characteristics into reasons as to why this group can and can't have access to some sort of right or service, etc.

That is completely opening the door to legal challenge in different circumstances. And from a broader perspective and when I used to work as a, as a doctor, you know, I, I've seen people in some pretty bad situations, but I tell you what, the people who I've seen who I've thought, you know what, something like this, you know, I, I could see why, you know, would be, could be helpful, why they may want something like this, has [00:36:00] not been people who were terminally ill with six months life expectancy.

It's been people who've been very disabled. suffering extensively, but with a much longer course of illness to be expected, with a great degree of suffering and disability, or illnesses which aren't necessarily terminal. And I think there's all parts of the bill, the scope of it, really does need to be unpicked.

And it's one of the reasons why I laid one of my amendments, which is to remove the six month criteria.

Ruth Fox: Can I ask you about that? So we heard in the oral evidence last week, sort of the lawyers disputes between themselves whether or not the terms of the bill are going to be open to challenge on discriminatory grounds.

Some say yes, some say no. We'll have to see and that's obviously something the committee's going to have to work out as it crawls through these amendments. You, as you say, you've got an amendment down to remove the six month terminal illness limit. Can I ask you though, just before we get to the detail of the amendments, how you go about the actual sort of crafting of them?

Sort of what the process is? You're a backbench MP, you haven't got significant access to [00:37:00] legal resources and so on. So, so how do you go about, when you decide what it is you want to do, how do you go about the practicalities of, of actually crafting these amendments?

Ben Spencer: It's a good question for two reasons.

So firstly, this is one of the reasons why I think something like this should be a government bill because you have government resources in terms of drafting and you have impact statements and you have a whole review that goes and explanatory notes etc and a lot more resource goes into it and I wish this was a government bill and that work had gone into it and I do think there's one of the things this whole process has taught me that I think there's a flaw in our constitution that these issues are seen as a matter of conscience of Parliament and they don't get picked up as first and foremost as government bills. The the only mechanism it really seems that that works in these sort of issues is around private members bills, where by definition the resources and availability is limited. But for me in this case, I focused, I've got an academic background in decision making capacity, I did a mental health law degree around which particularly focused on them as well in terms of the Mental Health Act, I've used the Mental Health Act [00:38:00] extensively. I know the Mental Health Act and the Mental Capacity Act like the back of my hand and the reason why this is relevant for this bill is that it's pretty clear to me, and I could be wrong, but it looks to me like a lot of this bill has taken as its inspiration the Mental Health Act in terms of processes, in terms of the way to do things, so there looks to me a lot of it Mental Health Act type approaches that have been used in this bill. And I haven't spoken to the person who drafted it, so I don't know if that's correct or not. But I see a lot of what's in the Mental Health Act in terms of procedurally that's within this bill. And so what, I've had a good idea on a few things, um, and also a discussion with colleagues and suggestions, a few things that I thought would make sense in terms of taking this forwards.

And, in conjunction with the clerks, worked in terms of putting something together. I mean, I didn't do the drafting, drafting, the clerks did the drafting of the text that works in law, language for these sort of bills. But the, the idea in terms of how to go about doing it was things I, I thought. And it's been a sort of iterative and evolutionary process as it's gone on.

Ruth Fox: And do they [00:39:00] advise you on scope? Because that's one of, going to be one of the key things that the chair of the committee is going to have to look at. We were talking earlier on the podcast to Paul Evans, a former senior clerk in the House of Commons, who was explaining for listeners, the, uh, the amendment process.

And this, this key question of scope comes in, could be grounds for amendments being rejected before they, they get off the ground. Your proposal, for example, to remove the six month terminal illness time limit, um, is there a risk that's going to be regarded as out of scope? Do you have that kind of discussion with the clerks?

Ben Spencer: I don't really have discussions in terms of what works and what doesn't. The, the question of scope is ultimately up to the chair of the committee to decide what's in scope, and obviously they're advised from from the various clerks. If I could have, I would have submitted amendments to include suffering or some sort of definition of serious suffering as a separate gatekeeper in its own right to get within the bill. So it, irrespective of term that on this serious suffering would be seen as a, as a, as an access gatekeeper, but I wasn't able to, because that would be out of scope. So I've [00:40:00] also found during the process of putting amendments, I've been limited in terms of a, what may or may not be in scope, but also what I can do without effectively fully rewriting the bill and starting again.

So I can only amend the bill. I mean, what I. That sort of makes sense. I mean, I can't do a clause, which is delete the entire bill on the second clause, which just has a new bill. Um, and I'm not saying that's necessarily needed, but there's a few bits of my amendments, which have been limited where they're not where I'd like them to be because of, we've got to work with the bill in front of us and there's only a certain amount you can, you can move.

Ruth Fox: Going to your actual amendments then. So you've mentioned the removing the six month terminal illness time limit. You've also got one down about ensuring there's a proper psychiatric assessment of patients, an assessment for the use of the Mental Health Act if, if it's needed. A big issue that keeps coming up, came up in the second readings, come up in the oral evidence sessions, is ensuring palliative care is available.

So you've got an amendment on that as well I understand. [00:41:00]

Ben Spencer: Absolutely. I'll take the palliative care amendments first, because I think actually that's probably in some ways the simplest. If we're going to use autonomy as a safeguard, then you start dismantling that if there's no choice. There is case law with a view to relying on consent and capacity in certain circumstances in quite substantial decisions, and I think that plays into the palliative care.

And also, I think it makes sense morally. You start getting quite worried, I would think, in terms of the exercise of autonomy in this context where really somebody has no choice because there isn't appropriate palliative care available. And so what my amendment's saying is that what I'd like to do is the doctors who are doing these assessments, I want to sort of change their roles from a coordinating doctor and a second opinion doctor to a terminal illness doctor, for want of better words, and a mental health doctor or mental health assessor, for want of a better word.

Ideally, they'd see the patient together across the board and work constructively. And then I want them, absolutely you must confer, but you want them assessing [00:42:00] together. I can't amend it so they do it from the start together. You've got to have doctor one, then doctor two can come in and do it with doctor one.

It's, it's irritating that I can't amend it that way. But the idea being is that one doctor is a sort of terminal illness expert, confirms that the person's terminally ill, confirms that palliative care is available as they view it, and that can be left to their discretion. They can do a capacity test. I think that's useful.

I don't think that's the most important thing in the world for the process that I envisage. And then you have Doctor 2 come along, who is a registered psychiatrist, a psychiatrist who has the, the credentials to be recognized as an expert in psychiatry for the purposes of the Mental Health Act. This is known as a Section 12 approved doctor.

There's a whole host of regulations and processes to be a Section 12 approved doctor. I've previously been a Section 12 approved doctor. It's um, a good process. That doctor There's two things. One is to assess their decision making capacity to make a decision to seek an assisted death or physician assisted suicide.

That is your expert, and so you get that expert [00:43:00] psychiatric capacity assessment. And they also make a determination as to whether the person is detainable or should be detained under the Mental Health Act. Now, this latter point for me is, I think, critically important. especially given the evidence that we've heard last week.

And the more I'm sort of focusing on and thinking about this bill, the more I'm concluding that a psychiatric assessment isn't, isn't a useful thing. It's an absolute essential, particularly I'm focused on the decision as to whether the person would meet criteria for detention in the Mental Health Act. I think what I found quite frustrating about this whole debate and this whole discussion, which is just an, you know, across the road from where I am at St. Thomas's Hospital, where I've worked as a, as a psychiatric doctor, uh, on call and seeing patients in A& E. Every day there are loads of people who go to hospitals and seek psychiatric help because they want to die, or they [00:44:00] express views around wanting to die, most of which is linked to mental illness.

Some of whom have terminal illness. And what I really worry about this bill is that it sort of starts setting in principle, a pathway, which is an expression of a desire to end one's life in the context of terminal illness at the start could be viewed as an assisted dying pathway request. Rather than a manifestation of mental disorder, which could be treatable, most of the time, almost always is treatable, in this sort of context.

And, the people who are the best people in the world, of course I would say this, you know, are people who work in the psychiatric profession, be that psychiatric nurses, or be that, you know, psychiatric nurses or psychiatrists, to separate out, when someone's saying, I want to die, What is the stuff that's coming from mental illness and linked to mental illness that needs to be assessed and treated and go down that pathway to the situation where an assisted death is a pathway, which is [00:45:00] permissible, I think is probably the best way of putting it, given all the moral and ethical issues around that.

So people going down this pathway have to be in front of a psychiatrist at some point. And the psychiatrist has to answer the question, does this person need to be detained in the Mental Health Act? I say detained, I mean, that's the bottom line, or admitted to a psychiatric hospital on a, you know, voluntary basis, otherwise.

But bottom line, do they need to be detained under the Mental Health Act if the admission isn't going to be forthcoming?

Ruth Fox: You've got a proposal to create an assisted dying agency to coordinate the process, essentially. And obviously, because the government is neutral on the bill, we don't really know how they propose to, to operationalise it.

A lot of the sort of detail about how this would work in practice is not clear or is going to be left to the Secretary of State to determine by regulations and so on. So you've got this, this concept of an assisted dying agency. So can you just tell us a little bit about what you're thinking was behind that?

Ben Spencer: As you rightly say, the position of the government in this is really [00:46:00] difficult and frustrating and It's why the vote that we had a couple of weeks ago now on the money motion is what I've been calling a sort of double blank check. Because it's not just a blank check, which is because it basically said all the funding that we need to fund will be funded for.

But normally, if it's a government bill, the minister who's taking it through has the power to limit what's in the bill in terms of then what the future funding commitment is. But given the ministers can't and they're not going to do that, and it's what Parliament decides and the government's going to implement it.

There's no natural mechanism to limit any sort of funding commitments from a government's perspective and they'll be left with having to put in place whatever is put in place and if they stay neutral, and I'm sure they will, um, that could be quite tricky for them going forwards. So I've got a couple of concerns about the way that the the coordination of the assessments is already set up.

We have this coordinating doctor who's one of the assessors who basically drives the process forwards. What I think makes a lot more sense is to have an independent body, we call it the Assisting Dying Agency. I mean, my, it's a pretty horrid name, you [00:47:00] know, it sounds pretty brutal, but it's a logical name because that's what it's to do and it's an agency, it'd be a government agency, to allocate the assessing doctors.

That way you can make sure, that they're truly independent, they have no conflicts of interest to the patient and you make sure of that, it's their, their duties to the court, to the truth, to the assisted dying agency, professional practice, not, not with relationships with the patient who's seeking assisted death.

But critically, you stop doctor shopping and you have a way of dealing with repeated assessments. So what I worry about is that you go, and actually, I know Dr. A is great for seeking assisted death because Dr. A as the coordinating doctor will always, you know, say it's completely cool, and Dr. B is awesome, you know, he or she will always approve and, you know, and they'll tout their services.

Or, I've seen Dr. B, he or she refused, so I've gone to Dr. C, and Dr. C signed the forms, and so it's all cool. Or, [00:48:00] Dr. A and B say no, but you know what? It's another week. I'm gonna get a new coordinating doctor and let's try again, uh, in terms of the process. And so you need a body that's going to regulate this.

It's going to allocate the people in a, in a fair way, which gets rid of these conflicts of interest and can stop repeated assessments. But in some situations you may want to repeat this assessment because what if somebody lacks capacity because they're temporarily confused because of effects of treatment or something.

And then a week later, they're much better. So you need to have the ability to restart the process. And my view is the Assisted Dying Agency should be the organization that makes that decision as to if there's a material change in circumstances, the assessment process can restart. It sort of maps a bit what what you do in the mental health sector, which you have the social care authority basically is the authority that allocates the second opinion doctor and what's a social worker who sort of coordinates the process a bit.

And as a key, a key [00:49:00] assessor in the process, so it brings a bit of sort of structural independence to the process.

Ruth Fox: And, um, the amendments that are designed to, to address these issues, you obviously can't speak to them in the committee because you're not a member. So how are you going about getting support from members who are on the committee to try and raise them or to move those amendments for you?

Ben Spencer: I can't speak on the committee, I can't push them in the committee, but what I've been doing is I've, I've contacted everyone on the committee, I've had some meetings with people on the committee to explain where I'm coming from, why I put them forward, I'm also speaking with other colleagues about these amendments and the logic behind them, I mean, speaking to yourselves in terms of my amendments and why I think they make sense and as part of the the committee around promoting them. The committee is only one part of the process. We've got Report stage when it comes to the House of Commons. Don't get me wrong. I am worried that the report stage isn't going to be as fulsome as I'd like it to be. But we do have a couple of pops at this in terms of having these [00:50:00] amendments.

And there could be an argument made that one has more chance of getting these amendments over the line, that Report stage, rather than that committee, because it's by definition, the committee is set up for a certain intrinsic majority within the committee in terms of voting things through. Um, you know, I've got respect for everyone who's, who's on the committee, but when it gets to report stage, it's the whole House of Commons where it's a different sort of election or election set of MPs who are voting than what's in committee.

But that being said, you know, I, I know people on committee are thinking about these, these issues in a great deal of detail and, and really. wrestling with them. And I think, you know, they'd very much recognized that the challenge that they have in front of them with, with this bill and the importance of, if it is going to become law, of getting it right.

Ruth Fox: Yeah. And as well as discussing this with members of the committee and people like Kim Leadbeater as the sponsor of the bill, are you also discussing this with government ministers? Or are they sort of having a, you know, they're not engaging with [00:51:00] MPs about those kinds of details?

Ben Spencer: I've reached out, but I haven't had any meetings as yet.

Ruth Fox: Yeah.

Ben Spencer: And I think this is, again, one of the difficulties in this sort of process because normally the person who's taking a bill through is a government minister and it's the government's bill. So Kim Leadbeater can't stand up in the committee and say as minister who is responsible for this I can tell you and reassure you we will do xyz.

I know a lot of in terms of as you know what happens in parliament is will people put forward amendments or they'll raise issues. They won't get put in the bill and they won't get voted on because the minister will make and will confirm at the dispatch box that this is how the Government's going to approach it and what it's going to do. So it's not necessary to put it in a law.

This cannot happen with this bill. But what I would like is a government minister to start coming up with these, these answers, you know, so what if things do go wrong? What about the, you know, the spending? What's, what's the take on that? Um, which is why I wish this bill had been taken on by the government or brought into government time [00:52:00] to try and work through these, these challenges properly.

Ruth Fox: Well, we'll have to see what happens in the coming weeks, um, both with the procedures for the bill and also what then happens with, the, uh, with the amendments and whether your, uh, your proposals, uh, get selected and debated and voted on and see what happens. But Ben, thank you very much for joining us on the podcast.

That was great insight into what's happening behind the scenes and how members are thinking about the bill and about the concerns, even if you're not on the committee. So thanks for joining us and we'll no doubt, perhaps try and get you on the podcast later in the, uh, in the process when we perhaps get to report stage.

Ben Spencer: Oh, brilliant. Well, that'd be great. I'd very much look forward to it. And thank you for, um, for the time.

Ruth Fox: So that was Dr. Ben Spencer MP. We know the Assisted Dying Bill is one of the most controversial pieces of legislation Westminster has faced in decades. So, this week, Paul Evans has helped us unpack the procedural hurdles, especially for the Public Bill Committee chairs who will soon be making some tricky procedural and political calls.

And Ben Spencer has just highlighted the complex ethical and moral issues MPs are wrestling with, [00:53:00] showing that support or opposition to this bill isn't as clear cut as some like to suggest. In the coming weeks, this amendment process in Committee will take centre stage. If you'd like to follow along, you can find the amendments on the Terminally Ill Adults End of Life Bill page on Parliament's website.

But the website isn't the easiest to navigate, so just check the show notes in your podcast app or head to hansardsociety.org.uk. Click on this episode and you'll find links to all the resources we've mentioned, including those amendment papers. But a heads up, amendment papers can look really confusing.

The numbering often seems completely random. Why? Well, that's because amendments are numbered in the order they're submitted, but they're printed in the order they appear in the bill. The papers are updated daily when Parliament's sitting, with a star marking new amendments since the last update. And keep an eye out in the coming days for a document titled something like chairs provisional selection and grouping of amendments.

It'll outline which [00:54:00] amendments will be debated and in what order and when, following the process Paul Evans explained earlier. So that's all from me this week. Thank you for listening. If you've enjoyed the podcast, and particularly if it's helping you professionally with your work, I'd be really grateful if you'd consider making a small charitable donation to the Hansard Society to help us cover our costs. Just £3 a month, less than, let's face it, you'll pay for a cup of coffee these days, will help us keep the conversation going over the course of the next year. And all being well, Mark will be back next week, bright eyed and bushy tailed, for our usual canter around all things Westminster. See you then.

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.