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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 hanardsociety.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 latest in our series of special podcasts, tracing the progress of the Terminally Ill Adults (End of Life) bill, the bill that will legalise assisted dying.

[00:00:35] Ruth Fox: And this week we're speaking to Kit Malthouse, a former Home Office and Justice Minister who's sitting on the Public Bill Committee considering this legislation and is also Chair of the All Party Parliamentary Group for choice at the end of life. He co-sponsored the bill with Kim Leadbeater.

[00:00:56] Mark D'Arcy: Kit Malthouse, first of all, give us a flavour of what it's like on the committee. You've been meeting for several weeks now. There's lots of amendments, lots of quite passionate speeches, lots of routine grind. How's it appeared to you, sitting there as a big supporter of the bill?

[00:01:10] Kit Malthouse MP: Well, it's been pretty intense, if the truth be told. As you, as you say, we've been at it for quite a, a bit now and we're sort of getting still in the early clauses of the bill.

[00:01:21] And it's been intense on a number of levels. I mean, obviously we're talking about an extremely serious subject, a matter of, of life and death and, and humanity and compassion and principle. But also it's intense because it's very legalistic. For those of us who aren't, uh, lawyers, line by line, scrutiny of any bill is quite testing from an intellectual point of view and understanding what can be quite complex interactions between this bill, other bills and between clauses in this bill itself is quite intense and requires a lot of concentration. And of course you will know that the way Parliament presents these things, also takes quite a bit of, of staying on top of. So while we might debate certain amendments, we don't actually get to voting on those amendments until later in the bill.

[00:02:10] And so working out what you are going to be voting on in the future is also part of the challenge. But to be honest with you, it, it's felt to me actually, for all the very obvious differences on the committee, in many ways, quite constructive. I think everybody's motivation is the same, which is to make the bill as safe as possible, although even then I think there are some people who, even if we did accept all their amendments, probably still wouldn't vote for the bill. But at the same time, I think everybody is being very respectful.

[00:02:41] Mark D'Arcy: One of the issues that came up, and it's gone big on social media, is the idea that there should be built into the bill, a requirement that someone seeking assisted dying should have a consultation with a palliative medicine provider to see whether they could, in effect, be made comfortable and not feel that they had to end their life. I think that's the logic behind it. And, uh, the minister, Stephen Kinnock and a number of other people on the committee rejected that proposition. This has led to quite an eruption on social media that the supporters of this bill don't want palliative medicine involved.

[00:03:14] Kit Malthouse MP: Yeah, no, that's not correct, and that's the kind of wrong assumption.

[00:03:17] I think quite a lot of the amendments that have been rejected thus far are seeking to duplicate elements of the bill that are already existing. And very often I think the debate has been that they misunderstand what is likely to happen. So, for example, in that case that you raise, the point was made that palliative care is offered across the NHS and is often offered in primary care situations, not necessarily through specialisms, and that in the structure that's envisaged, particularly with the insertion of this panel where Kim Leadbeater has put in these amendments to clause 12, that palliative expertise is going to be part of the process in any event. But also that key to understanding a patient's desire is the evolving discussion between what's called in the bill a coordinating doctor and the patient, because obviously what we're trying to get to is a settled and critically informed decision to seek an assisted death.

[00:04:23] One of the things that, funnily enough that I said yesterday in the committee is that we often find ourselves, I think, in a position where we're debating this situation as if it suddenly arises. And sadly, for some people that does. So for example, for people with pancreatic cancer, very often it comes very late in the progression of their disease, their diagnosis, because there are no obvious symptoms. But for the vast majority of people, the point at which they'll be having this conversation will come after many months, if not years of treatment. And so that evolving conversation and the shift to palliation is often conducted by the primary doctor, whether that's oncologist or a GP or whatever it might be. And so nobody is saying that palliative expertise shouldn't be part of the picture. But that in fact, palliation or palliative expertise is inserted at a number of levels already.

[00:05:13] And so therefore adding a third doctor into a system, which if Kim's amendments go through to clause 12, will already have three doctors, one on the panel, the first two doctors. Um, so adding then essentially a fourth along with also on the panel, a palliative care social worker, who will be sitting there, seemed to us a duplication that was unnecessary.

[00:05:37] Mark D'Arcy: You touched on on clause 12. Now this, this is for many people, one of the most critical parts of the bell, which deals with the process by which someone is judged to be competent to seek an assisted death. And that's going to involve, and as the bill currently is drafted, a high court judge presiding or a former high court judge presiding over proceedings.

[00:05:57] And there are now amendments from Kim Leadbeater, and indeed, I suppose directly from the Government to turn this into an expert panel. Now, that's some weeks away before you get to that point, but has that changed, which is quite a significant change in the contents of the bill as compared to what was debated at Second Reading, has that change, weakened support for the bill?

[00:06:20] Kit Malthouse MP: Honestly, Mark, I don't think it has. I mean, just to be clear, I was very happy with the high court judge structure and spoke in favour of that at Second Reading and you know, one of the criticisms that was levelled at that particular measure, that it was going to overload the judiciary.

[00:06:34] And I made the point at Second Reading that I didn't think that should be a constraint. We do lots of things in the House of Commons that we send to the judges. Nobody is suggesting that we shouldn't have, for example, an offense of spiking that's coming onto the statute book soon because the judges won't be able to cope.

[00:06:48] So, um, there's two separate questions, whether we've got judicial capacity and whether we should have a judge. In my view they are two separate questions. However, we did hear in evidence to the committee, oral and written, that there might be a better way where we could address that concern, which was expressed by lots of people, but also where we could insert more expertise than a sitting judge might have at their disposal at this critical third layer.

[00:07:16] And the evidence came through quite strongly that a panel, not dissimilar to the Spanish model with a psychiatric expert, obviously there's a strong sense that people should have some kind of psychiatric oversight, a legal figure who could be a judge, retired judge whatever sitting on the panel, and also a, um, palliative care social worker with expertise in palliative care would be a, a good system to provide the kind of expert oversight that's required. But all of that under the supervision of a high court judge sitting in this Commission, which will appoint, set the codes of practice evidential and, and effectively be a, a route of appeal. And so when Kim suggested it, it seemed to me to address some of the concerns from people who had doubts about the system that was previously proposed, and so I was kind of willing to support it.

[00:08:09] And certainly talking to people that I've spoken to, I haven't seen any shift. And in fact, what I've discovered in politics actually is there's an initial reaction to things which is often fed, as you say, by social media, but then when people actually sit down and look at it and think about it, they come to a a different view very often. And so people who've expressed possibly a doubt, MPs expressed a doubt about this change because it was just a change. They'd look at the change in more detail and say, well, actually, yeah, I can see the sense. And to me, I can't honestly see how anybody can rationally say this is less safe than it was before.

[00:08:44] Ruth Fox: One of the challenges Kit, with legislation, is working out what the balance should be between what you put on the face of the bill, the primary legislation, and what goes into regulations that ministers can then bring forward at a later date. And there's always that question of how much detail should go where. Now with my Hansard Society hat on and concern about the scrutiny of delegated legislation and the breadth of powers and so on, it's been notable, I think, particularly this week that quite a bit of debate about that balance and a concern that perhaps too much detail is going to be left to regulations and guidance and the detail will only be known at a later date.

[00:09:23] You said in the committee this week, yes, there's a duty to the statute book. But we can't, as you described it, "embroider" it to the extent that it, the bill, becomes overcomplicated and unworkable. But on the other hand, there's an argument that actually we only know how it will work and that we, we get clarity, if the detail is on the face of the bill.

[00:09:42] Otherwise, you're handing powers to ministers at a later date. And we know that the Secretary of States, for example, involved here at Justice and Health have grave reservations about the bill. And we don't have that much detail about how the government thinks about the operationalisation of this at the moment.

[00:09:57] So what's behind your thinking? Why not put some of this detail on more of the safeguards on the face of the bill?

[00:10:03] Kit Malthouse MP: Well, first of all, you, you are completely right about secondary legislation and you may find, if you go back through the Hansards, that, I am unusual in a back bencher and secondary legislation, which is that I generally give a speech.

[00:10:16] My view is I'm there to scrutinise and to ask difficult questions and have generally done that. And, and I know there's a concern about the scrutiny of secondary legislation, but that lies in the hands of of backbenchers, and that's about us taking it seriously and subjecting the Minister to the appropriate scrutiny and testing questions.

[00:10:35] I would love to see much more robust debate around those things. But you are also right that we have to strike a balance with this legislation because the natural inclination of of government is to try and get particularly the sort of administrative details off the face of the bill and into regulation because that provides more flexibility to adapt to circumstances in the future. But at the same time, we do want to provide some certainty and reassurance in this most difficult of, of situations. The other thing that we have to bear in mind is that when I referred to, not embroidering, the statute book, that was about duplicating things that are already either implicit or explicit within the bill.

[00:11:14] And what we found with some of the amendments is that they are trying to duplicate things that are dealt within earlier clauses or to reinforce things that are dealt with in earlier clauses. And my general contention on that is you often create a conflict within the bill because you have two points of interpretation for lawyers rather than one.

[00:11:33] And so having clarity to me often leads to a much safer kind of legal basis for things rather than, well, are we dealing with clause one or clause four? And the words in clause four in that context may be different to the same words in clause one in that context. How is that going to be interpreted? And I want a bill that is very clear both legally and for people who are availing themselves of it.

[00:11:56] There are some things though, where I think we do need to have some reassurance on the face of the bill. So for example, I have some amendments down to clause five, which is about the declaration that the individual has to make, the first declaration, and I was particularly keen to have in that declaration a positive declaration that the individual had had explained to them all their options for the future and that they had understood those options.

[00:12:23] Now in the previous draft, where there was a schedule of what the declaration should look like, and that wasn't in there. And so I particularly wanted that because I think it's key for transparency. And so I have put, now I'm in negotiation with Kim and the government about what that amendment might look like when it actually finally appears.

[00:12:39] But as I say, so it is a kind of balance. You are absolutely right. I think at the moment we're doing our best to strike that balance. The other thing though, to bear in mind is that quite a lot of the, um, amendments around putting stuff on the face of the bill, and we had this discussion yesterday, are about policing the conversation between the doctor and the patient.

[00:13:00] Mark D'Arcy: And, and the, the British Medical Association, for example, has been very worried about the idea that there's gonna be this very prescriptive set of requirements, possibly specifying exact form of words that a doctor has to use. And that does seem to be, well, it's precisely the tensions you're talking about really, isn't it?

[00:13:15] Kit Malthouse MP: That's exactly right. And my concern, I mean, they are very strongly saying that doctors should have the flexibility to explore, as I say, this evolving conversation with a person who's got a disease and then may move to a point at which it becomes terminal. That evolving conversation to me has to be as flexibly policed as possible.

[00:13:36] We need to have some basic requirements, but some of the amendments, I mean, for example, we had amendment 50 in yesterday, which was very prescriptive about what doctors could and couldn't say and what they had to cover in the conversation. And my worry about that is that if you police a conversation legally, it becomes guarded.

[00:13:54] And for people who are very motivated and dedicated to have a, an assisted death, and we know from lots of campaigners that they are, even to the extent obviously, that people travel to Switzerland, people will become aware of what they should and shouldn't say. And given that we're trying to tease out their motivation and this notion of a settled will without coercion and that they've properly considered all their options, to make the conversation or to give the possibility that it might be guarded, seems to me to be less safe.

[00:14:23] There comes a point at which you have to set the broad parameters, let the doctor have the conversation, respect the autonomy of an individual that has capacity and not force them down a particular road of conversation that might be skewed.

[00:14:37] Ruth Fox: You mentioned earlier that you are in discussions with Kim Leadbeater as the sponsor of the bill, but also with the government about this amendment that you want to bring forward.

[00:14:45] And the role of the government in this bill is unusual because officially they're neutral, but obviously they've got the duty to the statute book to make improvements to it. But we saw this week the two ministers on the committee, they're there as ministers to explain changes to the statute book, technical improvements that they think are necessary, but they're also there to vote as MPs, and we saw that Stephen Kinnock was indicating that the, the government's position on one amendment was they didn't want it to go forward, to be approved. But he could understand the rationale for it and was minded to vote for it. I mean, watching on from outside the committee, it's a very, very curious and odd position to be in, and I'm just wondering whether this is, is hindering the discussions and the, the debate in the committee in any way in terms of taking the bill forward?

[00:15:33] Kit Malthouse MP: Well, I, I, it should be clear from the side, I'm in discussion with the government through Kim. So Kim is effectively obviously in discussion with the thing, but she, she has amendments down that are similar to mine or in the same area of mine. And so I'm talking to her about what's required. And she's obviously talking to the government. Yes. It, it is an unusual situation. It is. I mean, I don't think it's unique, but it is unusual to have MPs who are ministers who are voting as MPs and then dealing as ministers. But what we said earlier about the government having a particular way that it wants to present legislation, and then MPs having a particular requirement of that legislation, can often rub up against each other.

[00:16:10] And I think what Stephen was reflecting was exactly that, that he could understand the motivation behind a particular amendment, but that his advice from parliamentary drafters and the government office of legislation or whatever it's called, is that this amendment is not required. Now, some of that comes down to their interpretation of the law. Some of it comes down to their requirement for neatness and tidiness and for the statute book to be clear, I mean, there's often this phrase, the duty to the statute book, and they have a much wider ambit than we do because they would say, well, if this becomes a principle in this legislation, then it starts to be a principle in all legislation that this is the way we should do things and that's a problem. So it's that tension. I think that that Stephen was reflecting. Have I answered your question?

[00:16:57] Ruth Fox: Yeah. Well, so is your understanding when, when the minister stands there and says the government's position is this, that what they're effectively reflecting is not a political decision by ministers, but a legal decision by the Office of Parliamentary Council and the Government Legal Service advice to the two departments. Because this, this whole concept of what is the government, if the, if the ministers are taking a different view and we know that they've got a different view to their secretaries of state, who's the government and who's actually making the decisions?

[00:17:30] Kit Malthouse MP: It's a good question actually, and I'm not across what the decision making process is within the department or indeed. How close to it, say for example, Number 10 is, but effectively what Stephen is speaking to is the collective view of the government, and then he's allowed to vote and as you say, say that personally, he can have every sympathy.

[00:17:53] So there will be, as you know, in, in drafting these things, a kind of collective decision making process. Although we can't over say really quite a lot of the amendments and the, and the objections to amendments are sort of technical in nature. Hmm. I think if there was a, a big government amendment in principle, then that would obviously have been through the political machine and effectively, I would imagine Number 10 would've signed off. But I'm not across how they're doing it. But as I say, Stephen is, in my interpretation, is Stephen is presenting the collective view and uh, ministers are free to vote accordingly to their view. And I think I'm right in saying this has happened. You'll probably know better than me that when the abortion Private Members Bill was going through, there were two ministers on it, one of whom was pro and one of whom was against.

[00:18:41] Yeah. And they were allowed to vote accordingly, even though they were presenting a collective view. It is a slightly odd feature of our constitution that because we don't have an administration model, because the executive is drawn from the legislature, we do occasionally come across these unusual positions.

[00:18:59] Mark D'Arcy: Just a final thought really, Kit, you've been in this sort of pressure cooker of the committee now for for some weeks. What are the atmospherics like in there? Is it becoming more adversarial because of the clamour of social media outside, or are you learning to work together?

[00:19:14] Kit Malthouse MP: I think that, the latter. So I think the initial debates were quite testy, should we say, but as we've worked our way through it, and there's been an acknowledgement on all sides that people are motivated correctly in what they're trying to do, that it has become much more collegiate and, and good natured.

[00:19:37] Also, it was always going to be the case that as we came into the early clauses, which deal with some of the big principles, frankly, there was going to be a, a clash of ideas.

[00:19:46] You know, what politics is like, right? So off stage is very different to on stage, off stage everybody is obviously civil and polite and to largely on stage too. And that seems to be, as I say, the the mood of the committee, that we're all focused on getting the bill right, so we can present something back to the House, which is worthy of the job they've given to us.

[00:20:06] And I certainly am finding that.

[00:20:08] Mark D'Arcy: Kit Malthouse, thanks very much for joining Ruth and me on the pod today.

[00:20:11] Ruth Fox: Thanks, Kit.

[00:20:11] Mark D'Arcy: Thank you.

[00:20:15] Ruth Fox: So, Mark, what did you make of that?

[00:20:17] Mark D'Arcy: Well, I, I was very interested in what he was saying at the end there about just the atmospherics in the committee and how it started quite sharply, adversarial and, and has perhaps settled down a bit. I don't think you're ever going to get into a kind of Walton's Mountain scenario where the music comes up and the, the whole family has a group hug after a nasty argument.

[00:20:34] But I do think that they've settled into a rhythm and if you watch the proceedings of the committee, people are making their points and getting on with it now, and it doesn't seem quite as spiky as it did in some of those earlier sessions. I, I dunno quite if it's ever going to be totally collegiate because the issues in this are just too powerful. But it's interesting to see it settling down a little.

[00:20:56] Ruth Fox: Yeah. I was also interested in the beginning when he talked about, you know, this is a very legalistic process and even for somebody like himself who comparative to many of the members on the committee and indeed in the House, he's, he's quite experienced now.

[00:21:11] You know, still, the process of the way in which they debate and, and decide on amendments at this stage is really still quite complicated and, and, and sometimes difficult to follow. And that, bit at the end, about the difference between the onstage and the off stage. Of course, this is what a lot of the public suspect about politicians, that there's a sort of theatre to the onstage that's perhaps more spiky, but behind the, the stage it's, it's, it's a lot more collegiate, as you say.

[00:21:38] Mark D'Arcy: Yeah, bill committees don't perhaps lend themselves to parliamentary theatre, but I do think that there is a little bit of making points to the outside world, to the people who are watching online, on the Parliament TV website, which is something that's actually quite unusual. Most people do not watch bill committees in action. This is probably getting higher audiences than any bill committee in the history of the universe, uh, and rightly so, because it's a very big, important issue that's attracted a lot of public attention. But the way Bill committees work doesn't really lend themselves to great fiery speeches all the time.

[00:22:10] Ruth Fox: No, and that's one of the things I think that if you are monitoring social media and just looking at ordinary members of the public who are interested in it, saying, you know, I don't understand what's going on. It's very difficult to follow and basically criticising the process because they don't really understand what's going on and concluding that somehow that the, you know, there's something nefarious about the whole process and it's all a bit of a stitch up when in fact the process is, is broadly entirely normal. With the exception I have to say of this question about government , which I'm afraid still bothers me, and Kit's response didn't really alleviate my concerns.

[00:22:45] Mark D'Arcy: Well that, that point he made about. The 1960s legalisation of abortion was, was quite interesting. There. There were two ministers and one was for, and one was against. Of course this time.

[00:22:55] Ruth Fox: Yeah, exactly. That's not the case. They've, they've put on two ministers who voted for the bill at Second Reading and they're already - the makeup of the committee, the composition of it already marginally favours those supporters at Second Reading a little more than it should proportionately, if you were doing an absolute mathematical calculation of the proportions of support and opposition. And then they've effectively exacerbated that by then adding to it two ministers who both supported the bill at Second Reading. And I, I just think who is the government here? You know, we keep hearing this, you know, the collective government view, but if the minister stands in committee and says, well, I take a a, a different view on this personally as an MP, and I'm, I might be minded to vote against what the government's recommending. We know that the secretaries of state are opposed to the bill at Second Reading, who's making the decisions and how? And this may be an entirely proper process. But it, I think they just need to be more transparent about explaining it.

[00:23:54] Mark D'Arcy: Well, a, a lot of the question as, as, as Kit Malthouse was saying in, in that interview, a lot of the time the issues are technical, rather than issues of principle. So, you just don't want something there that causes a bit of ambiguity to creep into the bill, and there at two alternative sets of wordings that could be tested in the court and which one should the courts take most seriously. Those kind of issues are the sort of thing that crops up with almost any piece of legislation. And you can see why sometimes governments take what seems to be an unreasonably stubborn position against.

[00:24:23] Ruth Fox: But sometimes you can take, for example, if it was a safeguard that was being proposed and the legal advisors are saying, well, you know, this is going to create complication in relation to another clause and issues of interpretation. Well, then that's their job to try and redraft it to achieve the same objective whilst removing that potential for conflict, and that's what they do all the time through Committee and Report Stage on other bills. My concern is that if after all this time, weeks in committee, we get to the end and not one amendment or very few amendments, no safeguards, are added to the bill from those who've got concerns about it, it might look very odd to the watching public.

[00:25:10] Mark D'Arcy: I think people do have to remember on the bill committee that this is, as well as being what he called a legalistic process, and it obviously is a legalistic process, it's also a political process. Yeah. Concerns have to be seen to be addressed.

[00:25:22] Ruth Fox: Yeah. I mean, there's procedural correctness and there's legal correctness, but there's also sort of perceptions of fairness and integrity.

[00:25:29] Well, the smart politics, frankly, smart politics. I do think if you get to the end of the process and the conclusion is that the only changes that have been made to the bill have effectively come from the bill's sponsor Kim Leadbeater and therefore at this stage, largely from the government, and that there's been no openness to accepting a change, a safeguard that's come forward from those who have reservations about the bill of varying degrees of severity in terms of those who voted against the bill at Second Reading. I just think that the idea that they've got no useful proposals, no useful amendments, I just think that's not going to fly in the court of public opinion.

[00:26:07] Mark D'Arcy: And the proposals and supporters of the bill, I think also need to beware of getting into a situation where that can be said when they get back to the floor of the house for the report stage.

[00:26:17] Mm-hmm. If. Critics of the bill can make the charge you just haven't been willing to listen to any suggestions for safeguards. Mm. That may strengthen their hand in the Chamber of the House of Commons as opposed to the committee chamber. There are people who are a bit wavery about this bill. Very interesting to hear Kit Malthouse saying that he didn't think the big change that's been considered so far about switching from a high court judge presiding over the process to switching to an expert panel.

[00:26:40] He doesn't think that's really swung people away from the bill. But we shall see when that gets, we don't know, we, we, we don't know. That's not, that's yet to be tested. Yeah. And will be tested when you get back to the House of Commons for Report.

[00:26:51] Ruth Fox: Yeah. And the bill, whatever your views on it, it has to go through a process that commands the confidence, not just of the MPs in the Chamber and indeed the House of Lords when it gets there, but it has to command the confidence of the watching public outside Parliament. And that means sometimes going the extra mile and it might mean sometimes a little bit of embroidery.

[00:27:10] Mark D'Arcy: And with that, Ruth, uh, that I think is probably a good place to end this, uh, latest specialised pod on the progress of the Terminally Ill Adults (End of Life) Bill, the assisted dying bill, we'll be back with another one next week.

[00:27:23] Ruth Fox: See you then. Bye-bye.

[00:27:27] Intro: Parliament Matters is produced by the Hansard Society and supported by the Joseph Rowntree Charitable Trust. For more information, visit hansardsociety.org.uk/pm or find us on social media @HansardSociety.