The Terminally Ill Adults (End of Life) Bill – a dangerous licence for executive law-making – UK Constitutional Law Association

The Terminally Ill Adults (End of Life) Bill is now in the House of Lords. After months of frantic activity in the Commons there is an opportunity for Parliament to draw breath and for the upper house to consider this measure carefully. It already has two critical committee reports published by the Delegated Powers and Regulatory Reform Committee and the Constitution Committee to assist its deliberations. These highlight a deeply flawed bill which proposes extensive executive discretion while leaving much uncertainty as to how this will be exercised.

The bill is of course highly contentious, passing its Third Reading in the Commons on division by 314 votes to 291. A bill once modest in size has grown large; one with relatively few delegated law-making powers now contains many. In this post I argue that, given the measure’s nature as a private members’ bill, these developments are problematic for two reasons. First, these new powers add a further layer of uncertainty to a bill that did not undergo thorough pre-legislative scrutiny or pre-legislative government impact assessment as might a Government Bill. A measure lacking such groundwork gives rise to considerable unpredictability regarding its eventual effects; and this has only been exacerbated by significant substantive amendments in the closing stages of the Commons process. A second issue is that that the bill accords broad secondary law-making, code of practice and guidance powers to a government that has declared itself neutral on the bill and which is therefore not in a position to indicate fully or clearly how these powers might be used. I explore both of these issues in this post.

When the bill was introduced by Kim Leadbetter M.P. on 11 November last year it comprised 43 clauses and was 32 pages long. After a committee stage that lasted from late January until late March, at which over 500 amendments were laid down, and following a report stage of over a month, the version of the bill which came to the Lords now contains 59 clauses and is 51 pages in length. The bill in its original form contained 17 delegated powers; these have multiplied to 42, including three Henry VIII powers. 

Although the House of Lords Constitution Committee is frequently critical of such developments – e.g. here – my concern does not derive merely from the late increase in the size of the bill or the growth in number of the delegated powers which it creates. Each of these developments is far from unique in the passage of legislation, and often late changes occur for defensible or even positive reasons – government responsiveness to criticism of a bill being one justification. Indeed, such a case can be made here. The bill is not a government measure but its sponsors have listened to criticism and amendments have been made in response to this. The two criticisms I make are instead structural, relating to the ‘private members’ nature of the bill. 

The first issue is deliberation, impact assessment and scrutiny. The fact that the bill has not undergone a process of pre-legislative scrutiny which we would expect from a Government Bill of equivalent significance has been noted elsewhere – here and here. The Institute for Government has also said: “Legislation on an issue like assisted dying would have benefited enormously from a more thorough preparation phase.” The Constitution Committee considers such processes good practice. For a measure as significant, controversial and complex as the introduction of state-assisted suicide, one would have expected not only pre-legislative scrutiny but some kind of national conversation through, for example, a Royal Commission inquiry. Then there is parliamentary scrutiny itself. The bill was certainly subjected to extensive deliberation at committee and report stages, but the publication of the bill was later than would have been the case with a Government Bill. The latter are typically published no later than First Reading or very shortly thereafter. This bill had first reading on 16 October 2024 but was not published until 29 October ahead of second reading on 11 November. A related matter is impact assessment. The Cabinet Office’s Guide to Making Legislation (2022) sets out the purposes of impact assessments and what this should contain (paras 13.7- 13.10). Mark Elliott has summarised this:

“a process that involves defining the relevant ‘policy problem’, identifying a range of potential solutions ‘through engaging with interested parties ahead of formal consultation’, going through a formal consultation process, and, ultimately, publishing the full impact assessment ‘when the Government announces its firm position on a single policy option’ and ‘again when the proposal enters Parliament’. As the Guide to Legislation explains, the purpose of this work is to provide ‘a full assessment of economic, social and environmental impacts’ in the interests of ensuring that parliamentarians who consider the Bill are able to do so in a fully informed way.”

The Government has now published explanatory notes, an impact assessment, an equality impact assessment and a human rights memorandum for the Bill (links are to the versions laid in the Lords). But these were not tabled until May of this year, after the bill had completed committee stage in the Commons. 

This is of course very late, but there is a further problem. These assessments were prepared by a government that is not responsible for or leading on the bill and which has therefore not done the impact groundwork that would have been part of the generation of a Government Bill, nor did we see green or white papers. The highly critical Delegated Powers and Regulatory Reform Committee report on the bill, published on 8 September, notes in relation to the Delegated Powers Memorandum: 

“the Memorandum is more limited and less helpful to us than is usual: it does not justify the Bill’s delegated powers or the associated Parliamentary procedure but instead considers matters which may affect Parliament’s view of whether they are appropriate. In place of justifying the Bill’s powers, the Memorandum offers the Government’s understanding of their rationale.” 

Expert governmental drafting and pre-legislative scrutiny have also been lacking. Without this level of engagement from the beginning it must be asked whether the impact assessments can possibly offer a complete and thorough review of the bill’s potential impact across a range of economic and social settings, not least the rights of the individual and an already stretched National Health Service. 

A second problem flows from this lack of ‘government ownership’ of the bill: delegated powers. The already substantial number of powers has mushroomed through amendment at committee and report stages. An excellent (and once more, critical) summary of many of these is offered by the Hansard Society. 

The Constitution Committee has said in a report on Legislative Standards published in May: “It is essential that primary legislation is used to legislate for policy and other major objectives. Delegated legislation, which is subject to less parliamentary scrutiny, should only be used to fill in the details and make necessary amendments, and should not be used to make major policy changes.” And in a 2018 report on delegated powers: “Delegated powers should be sought only when their use can be clearly anticipated and defined. Broad or vague powers, or those sought for the convenience of flexibility for the Government, are inappropriate. There must be a compelling justification for delegated powers and it is for Parliament to decide if that justification is acceptable.”

I will focus on a select number of the bill’s wide powers to illustrate some of the main problems of this approach. An important provision (clause 22) of the bill is the appointment of ‘independent advocates’ to support people with learning disabilities, mental disorders or autism “to understand options around end of life care, including the possibility of requesting assistance to end their own life.” Clause 22 does not in fact make explicit provision for such advocates on the face of the bill, but empowers the Secretary of State to do so by regulations. The Secretary of State may make provision about the appointment, training, remuneration and function of these advocates and “a person may act as an independent advocate only in such circumstances, or only subject to such conditions, as may be specified in the regulations” (clause 22(2)(a)). These regulations therefore give the Secretary of State considerable discretion in designating who these advocates will be and how they should operate. 

Clause 25 allows a coordinating doctor to provide a person with an ‘approved substance’ to end their life. Clause 27 requires the Secretary of State to specify by regulations one or more drugs or other substances for use under the act. Related to this, clause 37 requires the Secretary of State to make regulations about the supply etc. of approved substances. There is no provision that the Secretary of State need consult in the exercise of these powers, not even the Medicines and Healthcare Products Regulatory Agency.

Clause 39 requires the Secretary of State to issue codes of practice related to various aspects of the Bill’s operation. These codes are intended to cover a wide range of matters, including assessing whether a person has a clear and settled intention to end their own life; assessing whether the person has capacity to make such a decision; and the arrangements for a person requesting assistance to end their own life to receive the support of an independent advocate, including the role of these advocates. Clause 40 is a related provision added at report stage. It introduces an extremely broad, indeed skeletal, guidance power. The Secretary of State must issue guidance “relating to the operation of this Act.” There are strong reasons to see clauses 39 and 40 as ‘disguised legislation’, giving the minister the power to make codes of practice and guidance which may be considered obligatory by those to whom they are directed. 

Clause 41 imposes a duty on the Secretary of State to make regulations ensuring that voluntary assisted dying services are available in England. It grants the Secretary of State the power to make further provision about voluntary assisted dying services, providing that regulations may incorporate voluntary assisted dying services into existing NHS services, and that voluntary assisted dying services must be free of charge subject to exceptions set out in the regulations. This is an extraordinarily wide Henry VIII power, strongly criticised by the DPRRC as providing Ministers with “almost unlimited powers to legislate in that area by statutory instrument.”  

Clause 43 is a clause added by amendment that imposes a duty on the government to make regulations prohibiting advertisements that promote services relating to voluntary assisted dying. Clause 43(2) states that “the regulations may contain exceptions (for example, for the provision of certain information to users or providers of services)”. It is not clear what these exceptions might cover, and whether, for example, the Government could launch a public information campaign.

Other provisions are similarly provisional or skeletal. Clauses 47-50 concern monitoring and review of the Act, including the role of the Assisted Dying Commissioner and reviews of the Act’s impact upon disabled people. It is not clear that these provisions have been fully worked through. In particular, under clause 48 the Commissioner must appoint a Disability Advisory Board within six months of the Commissioner’s appointment. There is very little elaboration as to how this board is to be constituted or what its functions will be. Similarly, the monitoring role of the Commissioner underclause 49 is provided for briefly and with little detail. In an equivalent Government Bill establishing such important public bodies we would expect to see considerably greater detail about the constitution and functions of such bodies. 

As I have noted, the creation of extensive and broad delegated powers late in the passage of a bill is certainly not unique, but the issue here is compounded by the fact that this is a private members’ bill on which the Government’s position is one of neutrality. With a Government Bill, when the government is given – or in reality gives itself – extensive delegated powers, Parliament can at least gain an understanding as to why these powers are sought and what the government intends to do with them. This is clear from the government’s policy position and the aims and objectives it seeks to pursue. But when a government is neutral it is unclear exactly how powers – or broad duties – that are given to it will be used. This gives rise to many questions about the Terminally Ill Adults Bill: how will the government create and empower ‘independent advocates’; how will it designate and regulate ‘approved substances’; how will it use the vast power under clause 41; what regulations will it make prohibiting the advertising of assisted dying facilities, and will it introduce exceptions; and how will it use the extremely broad codes of practice and guidance powers it is given?

The DPRRC report is damning, saying of the bill: 

“some delegated powers have very limited provision on the face of the Bill and leave so much to delegated legislation that there is insufficient detail or principle evident for proper Parliamentary scrutiny of the underlying policy; in some cases, particularly where a substantial regulatory regime may be needed, this tendency results in skeleton legislation; there are several clauses where delegated powers can be used to do anything that an Act of Parliament can do. This is a highly inappropriate formulation that gives sweeping, unspecified and unjustified powers to the Government while removing Parliament’s scrutiny role for provision that should be in primary legislation, and replacing it with the considerably more limited role of scrutinising delegated legislation.”

It problematic for Parliament to vest in the executive delegated law-making powers which are unclear in scope and excessively permissive in reach. It is far more so when the Government has not sought these powers and – due in part to the lack of pre-legislative preparation and impact assessment, and in part to its declared neutrality – has given very little indication of how it will use them. That such powers should emanate from a bill of profound national significance makes this deeply troubling. 

Stephen Tierney KC (Hon) FRSE is Professor of Constitutional Theory at the University of Edinburgh and Global Distinguished Professor of Law, Notre Dame Law School. He also serves as Legal Adviser to the House of Lords Constitution Committee. This post is written in a personal capacity. 

(Suggested citation: S. Tierney, ‘The Terminally Ill Adults (End of Life) Bill – a dangerous licence for executive law-making’, U.K. Const. L. Blog (12th September 2025) (available at https://ukconstitutionallaw.org/))