Assisted Dying: No such Bill could be introduced in Senedd Cymru, or maybe it could?

Emyr Lewis, Emeritus Professor of Law at Aberystwyth University, gave evidence to the legislation committee about Wales-specific aspects of the Terminally Ill Adults (End of Life) Bill in their last session before the committee proceeded to line-by-line scrutiny.[1]

In this guest blog he expands on some of the issues covered, and how they raise some profound questions about the relationship between the Senedd and the UK Parliament.

Senedd Cymru has voted against legislating to permit assisted dying. Nevertheless Kim Leadbetter’s Terminally Ill Adults (End of Life) Bill which is proceeding through the UK Parliament would, if it became law, apply in Wales as it would in England.

By contrast, on 27th March 2024, Assisted Dying for Terminally Ill Adults (Scotland) Bill was introduced in the Scottish Parliament.

No such Bill could be introduced in Senedd Cymru. Any legislation on this topic affecting Wales could only be made by the UK Parliament in London. This is because changing the criminal law relating to homicide (including offences relating to suicide) is outside the Senedd’s power to make laws (‘legislative competence’)[2]. This discrepancy between Scotland and Wales arises ultimately from the anomalous position in which Welsh devolution finds itself, namely that of operating within the unified England and Wales legal jurisdiction.

Nevertheless, such legislation would most likely have a profound effect on matters which are clearly within the Senedd’s legislative competence, and where the Welsh Government has executive responsibility, such as the health service and social services, as well as affecting Welsh society generally.

Kim Leadbetter’s Bill was introduced in the House of Commons on 16th October 2024. Being a private members’ bill, however, it was not published until later (11th November). Given the high level of rhetoric both from its supporters and from its opponents, it is worth pausing to consider what this Bill actually does. From a broad perspective, the Bill can be seen as doing or enabling three principal things.

First of all it creates a detailed statutory process enabling terminally ill people of full capacity with less than 6 months to live to end their own lives if they choose to do so. The process is designed to ensure so far as possible that the choice is fully informed and freely made, without coercion or outside interference. The process involves assistance from medical professionals and a final ‘sign off’ (originally by a High Court judge, but now, it seems, by a multidisciplinary panel).

Secondly it removes criminal and civil liability from medical professionals who have given assistance in accordance with the process. Without those changes, medical professionals could be accused of offences under the Suicide Act 1961, and in certain circumstances murder or manslaughter.

Thirdly, it opens the door for the state to make arrangements for the assistance to be provided. It does this in a very wide-ranging clause, clause 32,[3] giving the Secretary of State (i.e. in effect the UK Government) an almost limitless power to make regulations, including to enable the provision of such assistance ‘as part of the health service in England and the health service in Wales’ (emphasis added). Such broad powers granted to a UK Government minister to make provision of this sort for the NHS in Wales is, I believe, unprecedented since devolution. Furthermore, it is broad enough for example to allow the direct provision of NHS services in Wales by the UK Government or a private contractor, and for hypothecating Welsh NHS spend for this purpose. There is no requirement to consult with Welsh Ministers before such regulations are made, let alone obtain their consent. On the face of it, such regulations should, in relation to Wales, be made by Welsh Ministers subject to approval by the Senedd.

The Bill also does other things of course, including monitoring how the legislation is implemented and a review by Parliament after five years. Senedd Cymru and the Welsh Ministers are given a limited role in monitoring, but not in reviewing. The Chief Medical Officer for Wales is also given certain functions.

It is clear that these last provisions and clause 32 are ones which, in the normal course of events, would require the consent of the Senedd under the rule which is still called the Sewel convention, but is now codified in section 107(6) of the Government of Wales Act 2006. That says: ‘it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Senedd’. Despite being in a statute, this rule remains a convention, which means that it does not bind the UK Parliament legally,[4] but it is nevertheless a rule which the UK Parliament should, constitutionally follow.[5]

There have of course been instances, in particular relating to Brexit and the fall-out from it, where the UK Parliament has under recent Conservative governments proceeded to legislate with regard to devolved matters against the wishes of the devolved legislatures, but that has not yet happened under the present government.

Also, of course, this is not a UK Government Bill, but a Private Member’s Bill. Had it been a Government Bill, issues relating to devolved matters would have been the subject of at least discussion and consultation between UK and Welsh Governments before the Bill was published. With a fair wind, the Bill would have included provision for Wales approved by Welsh Government, so that a Legislative Consent motion would most likely succeed in the Senedd. Because it is a private member’s bill, however, that has not happened. While it is clear that there have been some discussions between the UK and Welsh governments about the Bill[6], the promoter of the Bill does not appear to have been part of those discussions. Indeed, given the UK Government’s ‘neutral’ stance on the Bill, it would be strange if she had been. There do not appear to be any prospects of the UK Government adopting the bill. The consequence of this is that those promoting the Bill have to a large extent been flying blind to the Wales-specific consequences of their proposed legislation. They are not to be blamed for this: the Bill raises such a wide range of profound and complex legal, ethical and practical issues, that these were always likely to drown out any detailed consideration of Wales.

It can, however, be argued that it is not only the issue of what is inside or outside the Senedd’s legislative power which has salience. As mentioned above, the Senedd has expressed its opinion about the whole question of making assisted dying lawful.

In anticipation of this Bill being published, on 23rd October 2024, Senedd Cymru debated a motion calling on the Welsh Government to:.

1. a) support the principles of assisted dying; and
2. b) support Westminster parliament to introduce a compassionate assisted dying law in England and Wales.

The motion was defeated. 19 Members of the Senedd voted for the motion, 26 against with 9 abstaining (others were absent). Among those who voted against were a number of Welsh Government ministers including the First Minister Eluned Morgan.

That vote does not of course bind the Committee or UK Parliament in any way, whether legally or by convention. Parliament is free to ignore it. It was not, and could not be, a formal legislative consent motion. It is, however, something which those who support the Bill cannot ignore, for both practical and, I suggest, constitutional reasons.

In practical terms, if there is to be a formal legislative consent motion (and the Sewel convention dictates that there should be in respect of the clauses mentioned above), then the Senedd vote may be an indication that the Senedd would refuse consent. Better then to try to organise things in a way that does not run that risk.

In constitutional terms, if such a motion were defeated in the Senedd, then passing the Bill into law without that consent would seem constitutionally wrong. This is not the equivalent, for instance, of trying to re-base the UK’s internal markets following the chaos of Brexit. When the UK Parliament passed Acts ignoring refusal of consent from Cardiff or Edinburgh, it did so in what were considered to be the interests of the economic coherence of the UK. This Bill, however, is a different sort of creature.  It is a Bill which would bring about a profound change in the law relating to life and death, where there are strongly held (and expressed) moral, religious and cultural views against as well as in favour. How can it be constitutionally appropriate for the UK Parliament to pass such a Bill for Wales, when the Senedd has indicated its opposition by democratic vote after a thorough debate?

One way of achieving this might be by respecting the territorial boundary between Wales and England insofar as health and social services are concerned. Liz Saville-Roberts, the MP for Meirionydd Nant Conwy, who sits on the committee, has tabled several amendments which have this aim, by providing that almost all functions of the Secretary of State would be exercisable in Wales by the Welsh Ministers, and giving the Senedd a formal role in a review of the Bill.

One such amendment, in particular, would come close to respecting the Senedd vote. As mentioned, Clause 32, if it is not amended, would allow direct intervention by the UK Government in NHS services in Wales, including, in effect, requiring the NHS in Wales to provide an assisted dying service. If that were, as one amendment proposes, a power of the Welsh Ministers, subject to Senedd approval, the decision of whether or not to do this would belong in Wales rather than in London. Even if the change in the criminal law which is the purpose of the Bill were to come into force, the NHS in Wales would only provide an assisted dying service if the Senedd approved it.

That would only go part of the way, however, to respecting the Senedd vote. The vote was against ‘the principles of assisted dying’, not only about how the NHS in Wales might be affected. It was a decision which the majority of the Senedd made about those principles, having reflected on the moral, religious and cultural issues raised.

Now at this point it could be argued: ‘So what? The principles are linked to an area of law which is clearly outside the Senedd’s competence. Move on’. There would be nothing formally wrong with such a response, but would it be appropriate? Why not respect the autonomy of the Senedd in respect of these issues? On what principled basis is a decision of the Scottish Parliament or Northern Ireland Assembly in this area of principle to be respected, while a decision of the Senedd is not?

How then might the Bill be amended to respect the Senedd’s vote on the matter of principle? One straightforward way would be to provide for different commencement provisions in the Bill. As things stand, under clause 42 of the Bill, most of the Bill will not come into force until the Secretary of State has brought it into force, with the approval of the UK Parliament. Why not provide that the Bill will only come into force in Wales when and if the Welsh Ministers bring it into force with the approval of the Senedd? It might be objected that this would require provisions to be in place to manage cross-border issues, but that would be true also if, for instance, the Scottish Bill did not become law. Far more difficult cross-border issues were successfully accommodated in the context of legislation, also involving profound ethical considerations, when the National Assembly for Wales (as the Senedd was then called) changed the law on organ donations. A more radical approach might even decide that the Bill should be amended so that it applied only in England, and include a provision which would enable the Senedd to legislate on the topic, by amending the restriction in Schedule 7B to the Government of Wales Act.

This note takes no particular side in the debate on the ethical issues involved in the Bill. It is intended only to suggest that devolution is more than just about who gets to spend how much money in Wales and on what. It is also about values, and how people in Wales shape society here to reflect those values, through democratic processes, or risk having it shaped for them.

[1] His written note to the committee can be found here: https://publications.parliament.uk/pa/cm5901/cmpublic/TerminallyIllAdults/memo/TIAB107.htm and a transcript of his oral evidence here: https://hansard.parliament.uk/commons/2025-01-30/debates/895ba091-38d0-4162-8f79-40df9fae7e38/TerminallyIllAdults(EndOfLife)Bill(SixthSitting)

[2] Para 4(1) of Schedule 7B of the Government of Wales Act 2006 provides that ‘A provision of an Act of the Senedd cannot (a) make modifications of, or confer power by subordinate legislation to make modifications of, an offence in a listed category.’ Para 4(2) sets out the listed categories of offences, including ‘homicide offences (including offences relating to suicide)’ (para 4(2)(b)).

[3] For a robust critique of this provision by Matthew England of the Hansard Society, see https://www.hansardsociety.org.uk/publications/briefings/assisted-dying-bill-delegated-powers?utm_source=HansardSociety

[4] See R (Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 paras 147-149

[5] For a deeper look at constitutional propriety in the context of this Bill, see Professor Mark Elliott’s blog here: https://publiclawforeveryone.com/2024/11/18/assisted-dying-private-members-bills-and-government-neutrality/

[6] This is what the health minister, Jeremy Miles, had to say in the Senedd debate “we are in regular contact with the UK Government to understand and plan for the implications for the people of Wales…If an assisted dying Bill were to proceed, we would continue that engagement with the UK Government to determine which aspects of the Bill were devolved. This decision would establish whether we would need to proceed with a legislative consent memorandum, but, naturally, the area of health is largely devolved and therefore it is likely that there would be devolution implications.”