This is Prospect’s rolling coverage of the assisted dying debate. This page will be updated with the latest from our correspondent, Mark Mardell. Read the rest of our coverage here
21st February
Should terminally ill 16-year-olds have the right to die? At the moment that is what the Scottish bill permits—and that is ringing alarm bells in the top ranks of the Scottish police.
When the committee at Holyrood reports in Easter week it may recommend raising the minimum age. It ended all its hearings earlier this month and the full parliament will vote at the end of May.
The current bill would allow people to ask for an assisted death when they are 16, but the MSP behind the bill now says he’s open to changing it to 18—the same age as in Kim Leadbeater’s bill for England and Wales.
For many 16 seems too young—indeed, in public consultation one person suggested the minimum age should be 65! Why did the bill’s author Liam McArthur put 16 in the first place?
The Liberal Democrat politician said there is “a logic for 16” because “that is the age of adult capacity for making medical decisions in Scotland”.
“But we’ve also heard evidence from other jurisdictions such as states in Australia and the US where it is 18, and the bill introduced in Westminster has a similar age limit, so I am keen to reflect further should the bill pass at stage one [the report stage].”
The Scottish police are worried that if the law doesn’t change it could breach international agreements.
Steve Johnson of Police Scotland told the committee that the United Nations Convention on the Rights of the Child (UNCRC) was “fairly clear and unambiguous” that “you are a child until the age of 18”.
The assistant chief constable said: “Clearly, if the person is 17, under one convention they are a child. But, according to the bill, a 16-year-old can determine they want to move forward with a bill that seeks to end their life.
“I would seek that clarity—are they considered by the bill an adult at 16? And, if so, that is not consistent with lots of other pieces of legislation in Scotland and we would need real clear guidance on that, and guidelines on what is the role of parents of children, if it is deemed by parliament you did want it to be available to children, as defined by the UNCRC.”
Mr Johnson continued: “It’s those things that create a disparity between ourselves and other jurisdictions, that might make Scotland an attractive place to come to access the bill.
McArthur dismissed the idea Scotland could become a magnet for “death tourism”. “I think the numbers involved are extremely small.”
He added: “Now, I get that those with a terminal illness may have a prognosis that stretches out years and one of the decisions they might take is that moving to Scotland is something they want to do because they think, should the need arise, then the access to assisted dying is something that is more manageable, in their context, than it is elsewhere in the UK.
But McArthur poured cold water on the idea that this would lead to widespread movement into Scotland, while suggesting he might not oppose beefing up the rules if the committee thought it necessary. “Can I rule out the possibility that somebody may, on an individual basis, take that decision? No, I can’t.
“Do I think it’s likely to be part of a trend? I think the residency requirement is firm. It may well be that people believe that residency requirements need to be toughened up and extended.
“It’s something maybe the health committee will want to look at. But it’s difficult to imagine people are going to be moving around the UK for those reasons you suggest.”
McArthur, as the bill’s author, was the health committee’s very last witness before settling down to write their report. He was responding to a question about the evidence given earlier by Assistant Chief Constable Steve Johnson of Police Scotland.
While the MSP was even-tempered about the whole business I do wonder what the Scottish police are on about. While their concerns about the rights of parents and the definition of “child” are eminently reasonable, the same can’t be said for their contention that the potential age disparity might make Scotland an “attractive” place for people to move. As so often in this debate, the fear relies on the belief if the various bills become law assisted dying will become the norm. That is particularly true in this case: it is simply absurd to suggest there are hordes of English families with terminally ill 16-year-olds just waiting to move across the border. We will have to wait a few weeks to see if the committee agrees with me.
2pm
More than 50 MPs from all the British parties in parliament have signed a letter backing Kim Leadbeater’s plan to replace the safeguard of a High Court judge with a three person panel. They say, “We are all concerned to ensure that any assisted dying system provides rigorous safeguards to the risk of coercion and issues of capacity. Clearly, a panel with expertise on these issues is far more exacting than a High Court judge working alone. These professionals have everyday experience of dealing with coercion and capacity.
“Adding a psychiatrist—trained to look for capacity—and a social worker—to look for coercion—alongside a senior lawyer, speaks to the key topics that have arisen from witnesses and the Committee stage so far.”
So what of the accusation Leadbeater should have come up with idea much earlier?
“The Committee are doing what the Committee is supposed to do—listening to the evidence on all sides of the argument, and taking on board concerns to refine and strengthen the bill. The evidence demonstrated you need social work and psychiatrist input, as well as legal expertise, and these changes will mean the panel is one of the most robust third tiers in assisted dying legislation around the world.
“We respect all those who do not support assisted dying on principle. But this change can only strengthen safeguards if assisted dying is introduced.” None of the newspapers I have seen so far have bothered to report this development.
12pm
The Law Society’s call for wider consultation won’t exactly help those concerned time might be called on the bill. They quote with approval Labour MP Daniel Francis who “noted that, given the large number of evidence submissions from external organisations continuing to roll in to the bill committee, members may well struggle to keep abreast of the various perspectives.
“Francis asked the chair how committee members can reasonably be expected to begin line-by-line scrutiny when in the last week they have been presented with more than 400 documents, in addition to new amendments.” Francis voted against the bill because he was worried that the mental capacity provision wasn’t firm enough. Given that an amendment to tighten it was lost by eight to 15 he’s unlikely to change his mind any time soon.
19th February
10am
Another scoop for the Independent has been picked up by print media far and wide, along with very similar headlines to the Indy’s—“Kim Leadbeater’s appeal to critics not to use parliamentary process to kill her assisted dying bill”.
The Independent’s interview with Kim Leadbeater quotes her: “What I wouldn’t want to see would be that people do try and put so many amendments in that we don’t end up getting to third reading. But most MPs I’ve spoken to this week understand the parliamentary process.”
I’m sure she meant this to flatter her colleagues but surely her problem is that too many do realise that a flood of amendments could drown the bill. As a leading supporter of the bill pointed out to me, that is exactly why the last Lords Bill fell—it ran out of time. The committee has dealt with just a single clause in the time it expected to deal with six. Many MPs are rushing to put down amendments because they want to improve the bill but others are clearly trying to wreck it. You wont often hear me say this but for once the Mail has it right: “MPs could block assisted dying law by swamping Parliament with amendments.”
17th February
There has been a slew of pieces suggesting that the assisted dying bill is in big trouble and may face defeat when it returns to the Commons, all because of Kim Leadbeater’s plan to drop the sign-off by a High Court judge. The Sun says “the last-minute tweak, proposed just hours before MPs began debating the bill on Tuesday, has sparked a backlash—throwing its future into doubt and turning former supporters cold”. But the article fails to quote even a single former supporter feeling chilly.
As we reported here last week, the Independent started this particular ball rolling—and it has been picking up speed ever since, with those opposed to the bill gleefully pushing hard the notion that it will make a clean strike of the whole thing. Right To Life use the Indy’s report to declare the bill is now in “jeopardy after major safeguard scrapped”.
The Indy did at least do some proper journalism—it did find and name one MP who declared he was likely to switch his vote to “no”. But the contention that 60 other MPs may do the same has prompted a couple of pro-bill charities to push back. My Death My Decision (MDMD) and Humanists UK put out a joint statement: “Such notions are overblown. The 60 includes many who MDMD and Humanists UK know from conversations are not changing their minds as a result of this amendment. Indeed many are quoted above. While it may be in opponents’ interests to try to whip up the notion that very large numbers of MPs could change their mind, there is no reason based on this list to think that this will happen.”
That rather cautious assessment isn’t decisive, and I’d be interested to hear the views of lobby correspondents who are well placed to judge the real mood. But I can hazard some thoughts about what's actually been going on over the last few days.
For a start, blame journalists—journalists like me. Frankly, we find it more interesting to ask whether the bill is in trouble, even on scant evidence, even if the answer is pretty straightforwardly: “not really, no”. But even asking the question creates momentum because the bill’s many strong opponents will, of course, seize upon anything that gives them hope and encouragement.
I tend to agree with Polly Toynbee, writing in the Guardian: “Only in the pages of the Tory press are MPs stampeding: actual MPs seem to be moving little.” The debate has become more ideological, with the right-wing press furiously against it. It’s not quite so easy to see why this is when the debate in the Commons was so free of party politics. But I presume it’s a sort of High Tory, High Church thing—plus any stick with which to beat Labour.
But it’s more than that. Because it’s such a controversial bill it would have always faced intense scrutiny and press interest. But the fact that it is a private members’ bill and was a free vote has made a critical difference.
The Financial Times, quoting Jill Rutter from the Institute for Government, is clearly right to suggest the whole process would have been cleaner and better had the government adopted the bill. It also doesn’t take a huge amount of political nous to see why Keir Starmer wouldn’t want to touch it with a 16-foot, well-disinfected barge pole. That would be true even if he was basking in the sunny uplands of electoral approval in a calm and tranquil world. So dream on.
But the fact that it is both a private members’ bill and a matter of conscience—a free vote—is what the coverage and the jeopardy now turn on. Kim Leadbeater does not have the power of the whips behind her. She does not have a government majority to rely on. The vast majority of nail-biting, knife-edge votes star only a handful of heroes, conscience-stricken malcontents balancing on the blade, willing to defy party and the whips.
That would be a luxury for Leadbeater, who faces a phalanx of MPs eager to see themselves as heroic figures in an epic struggle to create a bomb-proof bill. While she has some very firm supporters, she has to battle with the conscience and deliberation of every single MP who voted for the bill every time she opens her mouth. And every single MP will want to make it clear to their conflicted constituents just how carefully, how seriously, they are taking this most serious of serious matters. You can hear the sound of deliberative chin-stroking from here.
That does make the going tough. I feel it has made Leadbeater, if not panic, react instinctively and too fast for some, who regard it as “rushed, slapdash, on-the-hoof legislation”. I’ve been predicting a move to a panel for some time—and think it is sensible. But was it wise to make the announcement at 10pm, the night before the committee met? No doubt it felt smart, a way of feeding the beast (the press) rather than allowing it to feed off you. With the blessed gift of hindsight, not so much.
But Leadbeater might have expected a warmer reception. After all, virtually no one backed the High Court judge plan. Certainly not the MP who told the Commons during the big debate: “Many eminent judges have made the point that it will overwhelm the family courts if the test were applied properly, but it will not be applied properly, because the bill assumes that judges will fulfil a new inquisitorial role and actually look into cases as investigators, which is entirely unknown in English common law. But the bill will not require any actual investigation.
“There is no requirement for a judge even to meet the applicant. They simply have to have a phone call, or maybe it will be an email, from one of the medics. That is it.”
Surely, Leadbeater might have hoped that this MP, perhaps the strongest critic of the bill, might welcome the scrapping of this poor, scorned plan, or at least have greeted it in silence. Not a bit of it. Danny Kruger was on the radio within hours branding it “a disgrace”.
That indeed is what it is, in a nutshell: the fluidity of principled opposition to cloak their principle in any old jumble of pragmatic clothing that is near to hand.
And every change opens up an opportunity for a new assault on the detail. The Spectator’s Steerpike claims the bill “seems to be dying a slow death itself. The legislation is losing support” because the new plan would mean a “death tsar” being appointed—which is weirdly reminiscent of Sarah Palin’s death panels. Can you, I wonder, see Russia from the walls of Gormenghast?
The Daily Mail, no slouch at making its readers shiver with fear with a phrase from the lexicon of the hard right, picks up the transfiguration of a former High Court judge into a chilling Death Tsar, a cross between K’s tormenters, Darth Vadar and Judge Dread. These people know their business.
No, I don’t think the bill is on the brink of defeat, but its opponents have influential friends who know how to create a powerful storm. They can ensure it will sail in troubled waters until the final vote is done.
