Like many pieces of primary legislation, the assisted dying bill leaves much of the practical and policy detail to be worked out later by Ministers through regulations. After the Bill’s Second Reading, we published a briefing which drew attention to two of its delegated powers.[1] But since then the Bill has been heavily amended in the House of Commons, prompting new questions: how have its delegated powers evolved, and do these changes strengthen or weaken the approach to the delegation of ministerial power?

When first introduced in the House of Commons, the Bill ran to 32 pages of legal text. By the end of its detailed clause-by-clause scrutiny in Public Bill Committee, it had grown to 43 pages and by the time MPs approved it at Third Reading it had grown further to 51 pages.

This growth was driven by amendments. More than 500 amendments were tabled at Committee Stage – many of them put forward by the Bill’s sponsor at the request of the Government.[2] Around a third of them were accepted, with a further 47 changes added at Report Stage.[3] The most consequential change was the removal of the original requirement for High Court approval, replaced with a new system of multidisciplinary “Assisted Dying Review Panels” comprising a senior legal representative, a psychiatrist, and a social worker.

Importantly, the amendments did not just flesh out the policy gaps left by the original delegated powers. Some amendments went further, inserting entirely new provisions, often described as safeguards or restrictions, which themselves generated new delegated powers.

The cumulative effect is that the number of delegated powers in the Bill has more than doubled, from 17 in the original bill to 42 in the final version agreed by MPs. The number of Henry VIII powers has also risen from one to three.

Such an increase in the size of a Bill and the number of delegated powers within it is not unusual, especially for bills developed with limited pre-legislative consultation.[4] But it does raise critical questions: what exactly do these new provisions contain, what additional delegated powers do they create, and how far should Parliament be concerned about their scope and the scrutiny any regulations made under them will receive?

Introduced at Report Stage by the Bill’s sponsor, Kim Leadbeater MP, clause 43 requires the Secretary of State to make regulations banning advertising that promotes assisted dying services.

Importantly, the Secretary of State is also given latitude to carve out exceptions to this advertising ban when (s)he makes the regulations. The Bill offers one illustrative example of such an exception – allowing “the provision of certain information to users or providers of services” – but even this is optional. The Secretary of State is under no obligation to adopt this example, and the Bill places no limits on what other exceptions could be introduced.

The Bill also leaves the concept of “advertisement” undefined. The Government is instead equipped with a broad power to specify exceptions to the ban. This ensures flexibility to ensure the provision is appropriately targeted, but it also highlights the extent of the discretion Ministers will possess in determining the reach and impact of the ban. The power itself does not provide clarity about which forms of communication the Government would not wish to prohibit: for instance, providing information about later stages of the process to individuals who have already begun the assisted dying process.

Delegated powers must be judged on the legal scope they confer, not on ministerial assurances or illustrative examples. As drafted, this clause would allow Ministers to create very broad exceptions, potentially undermining the advertising ban in ways Parliament may neither anticipate nor desire. The scope of these exceptions is not a minor operational detail: it is fundamental to how the prohibition will operate in practice.

At present, the Bill does not provide a list of what constitutes “advertisement”, instead leaving it to Ministers to carve out exceptions entirely by regulations. There are, however, alternative approaches that could be adopted.

A list of exceptions to what constitutes “advertising” could be included on the face of the Bill, with Ministers given no power to add or remove exceptions from the list. But this would seem an unnecessarily restrictive approach and one which, given the rapidly changing nature of communications, might soon become outdated.

Section two of the Tobacco Advertising and Promotion Act 2002 sets out the offence of tobacco advertising, while sections five and six set out a list of exclusions and defences. However, Ministers retain only limited delegated powers to adjust the scope of the ban. While this model would be an improvement on the approach in this Bill, preventing Ministers from adding to the list of exceptions may be deemed unduly restrictive given the nature of the communications environment in which we now live.

Peers may therefore wish to consider whether the Bill should set out an initial list of exceptions on its face, while still giving Ministers the power to add further exceptions through regulations. This would give Parliament and the public greater clarity and certainty over how the advertising ban is intended to operate.

On enforcement, the Bill is also vague. The only explicit constraint is that any new offence created through regulations would be punishable by a fine alone. This reflects the principle – endorsed by the Delegated Powers and Regulatory Reform Committee (DPRRC) – that it is for Parliament, not Ministers, to legislate for imprisonable offences.[5] However, the DPRRC has also been clear that, where Ministers are empowered to set penalties for newly created criminal offences, the maximum penalty should normally be specified on the face of the Bill, other than in exceptional circumstances.[6] In this case no maximum penalty is set out and the Government has given no indication of what exceptional circumstances might justify departing from that principle here.

Peers may therefore wish to consider whether a maximum penalty should be set out on the face of the Bill.

Clause 22 requires the Secretary of State to make regulations providing for the appointment of independent advocates to support “qualifying persons” through the assisted dying process. Qualifying persons include those with learning disabilities, autism, or mental disorders (as defined under the Mental Health Act 1983), as well as anyone who may struggle to understand the process or communicate their views, wishes or feelings.

The clause also empowers Ministers to expand eligibility for an independent advocate by adding further qualifying criteria through regulations. Importantly, this power can only be used to strengthen the safeguard, not weaken it. Ministers cannot use regulations to narrow the qualifying criteria for who is entitled to an independent advocate.

The clause also sets out a non-exhaustive list of matters that regulations on independent advocates may address, including (but not limited to):

• the circumstances in which someone may act as an independent advocate;

• the approval process for advocates;

• payment arrangements;

• training requirements; and

• obligations to ensure that advocates are present at key stages of the process.

This approach mirrors that set out in the Care Act 2014, which also provides for independent advocates in care and support processes, leaving similar operational requirements to regulations.

The Government has indicated that consultations with disability rights organisations and the Equality and Human Rights Commission are likely to influence the content of any regulations.[7] Its Delegated Power’s Memorandum notes that the use of delegated powers “allows the Secretary of State to consult persons considered appropriate before specifying the details in relation to independent advocates, if the Secretary of State chooses to do so.”[8] Unlike other clauses in the Bill, however, there is no statutory duty to consult before these regulations are made.

The regulations would be subject to the affirmative scrutiny procedure, requiring that both Houses of Parliament debate and approve them before they can become law.

This clause was introduced at Committee Stage by Dr Marie Tidball MP, rather than the Bill’s sponsor. No technical or drafting amendments to it were subsequently made at Report Stage. However, it has introduced a drafting inconsistency. Clause 54 – the general “procedure clause” for the scrutiny of the delegated powers in the Bill – lists which delegated powers require the affirmative scrutiny procedure (namely clauses 8(7), 11(9), 37, 39(4), 41, 42, and 43) and provides that “any other statutory instrument” made under other powers in the Bill is subject to the negative scrutiny procedure. Clause 22 is not included in this clause 54 list.

As a result, the Bill currently contains conflicting provisions: clause 22 itself specifies that the affirmative scrutiny procedure applies, while clause 54 implies the negative scrutiny procedure.

To resolve this ambiguity, the reference to the scrutiny procedure in clause 22 should be removed, and clause 54 amended to confirm that regulations under clause 22 will also be subject to the affirmative procedure.

In the Bill as originally introduced, Ministers were given powers to make regulations requiring doctors to notify the Chief Medical Officer (CMO) of certain “notifiable events”. A list of such events was set out on the face of the Bill and Ministers were permitted to add (but not to remove) items from that list. Regulations could also prescribe the content of notifications, the method of notifying the CMO, and the arrangements for enforcement.

The CMO was also tasked with monitoring the operation of and compliance with the Act; reporting on any matters referred to them by the Government; and publishing an annual report, including data on cases where doctors refused to authorise an assisted death. At Committee Stage, however, all these functions were transferred from the CMO to a new Voluntary Assisted Dying Commissioner. While the original regulation-making powers were largely carried across unchanged, three new delegated powers were added to reflect the Commissioner’s wider remit and responsibilities.

• Clause 44: Information gathering - Ministers may make regulations allowing the Commissioner to require, by notice, any individual or body (not just doctors) to provide information, and not limited solely to information about “notifiable events”.

• Clause 45: Information sharing - the Commissioner may share information with certain public bodies listed on the face of the Bill, where relevant to the functions of either the Commissioner or the specified public body. Ministers may also expand the list of public bodies through regulations.

• Clause 49: Annual report - the Commissioner remains under a duty to produce an annual report, but with a new requirement to include information on the impact on persons with protected characteristics, as well as any other categories of persons specified by Ministers through regulations.

The most significant policy change made by the House of Commons – the replacement of judicial approval with Assisted Dying Review Panels – has resulted in two new delegated powers. Both are relatively minor, because the basic framework for the panels is largely set out on the face of the Bill.

• Clause 17: Notification of decisions - when a panel determines a person’s eligibility for assisted dying, it must notify the applicant, the co-ordinating doctor, and the Commissioner. Ministers may, by regulations, specify any additional persons who must also be notified of the decision.

• Clause 18: Notification of appeal decisions - where a panel’s decision is appealed, the same parties must be informed of the outcome, with Ministers again empowered to extend the list of recipients of the notification through regulations.

At different stages of the process, the Bill requires six separate declarations, statements or reports to be completed by either the patient or their doctors.

• First declaration: after a preliminary discussion with a doctor, the person may make a formal declaration of their wish to seek an assisted death, confirming both their eligibility and their understanding of key information.

• Co-ordinating doctor’s report: the co-ordinating doctor must assess the person’s eligibility and capacity, produce a formal report, and, if appropriate, refer the applicant to a second doctor (the “independent doctor”).

• Independent doctor’s report: after a period of reflection, the independent doctor undertakes a second assessment of eligibility and capacity and issues a further a report. If satisfied, the case proceeds to a review panel; if not, the applicant may seek a second opinion.

• Second declaration: once the review panel confirms the person’s eligibility and a further reflection period has passed, the person must make a second declaration reaffirming their wish to proceed.

• Co-ordinating doctor’s second statement: the co-ordinating doctor must witness the second declaration, but only after confirming again that the applicant remains eligible and has capacity.

• Co-ordinating doctor’s final statement: after the assisted death takes place, the co-ordinating doctor must complete a final statement recording the death and other relevant details.

In the original Bill, the structure and content of these documents was set out in schedules at the back of the Bill. These were only provisional, as Ministers were empowered to amend or replace them by regulations, meaning the schedules might never have come into force in that form. In the revised Bill, these schedules have been removed altogether. Instead, Ministers are given the power to prescribe the format and content of the declarations, statements and reports through regulations. Parliament will therefore not see the full forms in advance. However, the Bill itself specifies certain information that each document must contain. These statutory lists, while detailed, are not exhaustive, providing only a minimum level of certainty. In practice, they closely mirror the content of the original schedules.

Clause 21 permits a person to authorise a proxy to sign their first or second declaration if they are unable to do so themselves. The clause also sets out a series of restrictions and requirements governing the use of proxies.

In the original Bill, a proxy had to be either:

1. someone who had known the person making the declaration personally for at least two years; or

2. someone “of good standing in the community”.

At Committee Stage, the second category was replaced. Under the revised bill, a proxy must either have known the person for at least two years or fall within “a description specified in regulations”. The original wording - “good standing in the community”- was ambiguous and might in practice have required clarification through guidance rather than regulations. However, moving this part of the definition of “proxy” from the face of the Bill into regulations potentially gives Ministers broad discretion to expand eligibility for proxies, potentially beyond what Parliament may have envisaged.

Peers may therefore wish to consider whether clearer, specific criteria should be set out on the face of the Bill, and if so, what the criteria might be.

In the original version of the Bill, Ministers could make regulations requiring doctors to notify the Chief Medical Officer (CMO) of any “notifiable event”. A baseline list of such notifiable events was set out on the face of the Bill, for example, where a doctor witnessed first or second declaration, or when a doctor refused to certify a person’s eligibility or capacity. Ministers could add items to this list through regulations but not remove them.

In the revised Bill, responsibility passes from the CMO to the new Voluntary Assisted Dying Commissioner, and the concept of “notifiable events” is removed. Instead, Ministers may require doctors to notify the Commissioner of “the occurrence of an event of a specified description”, with the list of such events now left entirely to regulations.

As a result, Parliament no longer has a baseline set of required notifications on the face of the Bill. This reduces certainty about what information doctors will be obliged to provide and, in turn, makes it harder for Parliament to anticipate the scope and reliability of the data that the Commissioner will publish or report.

Peers may therefore wish to consider whether a baseline list of notifications should be reinstated on the face of the Bill, and if so, what events it ought to include.

A notable improvement in the revised Bill is the strengthening of parliamentary scrutiny over certain delegated powers.

Each power in the Bill is subject to either the negative or affirmative scrutiny procedure. Under the negative procedure, Ministers can sign regulations into law before they are laid before Parliament, and those regulations remain law unless they are annulled by a resolution of either House. Under the affirmative procedure, Ministers can only sign regulations into law once they have been debated and approved by both Houses..

Some powers in the original Bill were subject to the affirmative procedure, all of which have retained that status in the revised Bill. However, in the updated Bill, several powers have been upgraded from the negative to the affirmative scrutiny procedure.

The powers in clauses 8 and 11, enabling Ministers to make regulations specifying the additional training, qualifications and experience requirements for the “coordinating” and “independent” doctors involved in the assisted dying process, including training on capacity, coercion, and domestic abuse, are now subject to the affirmative procedure.

It is disappointing, however, that the designation of the approved substance to be used to bring about an assisted death has not been upgraded to the affirmative scrutiny procedure.

While the designation of an approved substance itself remains subject to the negative scrutiny procedure, the broader regulatory framework (clause 37) – such as rules on supply and handling - has been upgraded to the affirmative procedure. As discussed later, there are concerns about the widening scope of the clause 37 power and the fact that neither of the two clauses include any consultation requirement.

At Committee Stage in the House of Commons, Liberal Democrat MP Sarah Olney proposed an amendment to upgrade the clause 27 designation power to the affirmative procedure, but the Minister, Stephen Kinnock, rejected it on the grounds that it could delay implementation within the Bill’s two-year commencement period.[9] Yet only a week later, the Committee extended the commencement period to four years. The Minister’s stated objection to an upgraded procedure was therefore substantially weakened but it was too late for the Committee to revisit the issue.

Earlier this session, Lord Falconer – who is now sponsoring Kim Leadbeater’s assisted dying bill in the House of Lords – introduced his own Assisted Dying for Terminally Ill Adults Bill. That Bill contained a similar delegated power, enabling Ministers to specify approved substances for use in assisted deaths. Crucially, however, Lord Falconer’s Bill subjected that power to the affirmative procedure, unlike Kim Leadbeater’s Bill. Peers may therefore wish to ask Lord Falconer whether he still considers that regulations designating approved substances should be subject to the affirmative procedure.

Given that the choice of drug to be used in assisted dying is likely to attract as much, if not more, public and political interest than the practical arrangements for its transport and storage, Peers may wish to consider whether the scrutiny procedure should be upgraded to the affirmative, to strengthen parliamentary oversight of the designation of the approved substance.

The more detail set out on the face of the Bill about how a delegated power will operate, the better equipped Parliament is to scrutinise it. During the Bill’s passage through the Commons, some additional detail has been added to certain powers.

However, attempts to add such detail can also create new difficulties, whether through drafting inconsistencies, overlaps with existing provisions, or unintended consequences.

In the original Bill, Ministers were given broad powers to specify, by regulations, any additional training, qualifications, and experience required of co-ordinating and independent doctors. However, no detail was set out on the face of the Bill as to what such requirements might entail.

The revised Bill strengthens scrutiny by requiring regulations to include certain mandatory training elements. Doctors involved in the process must receive training in:

• assessing capacity;

• identifying coercion or pressure;

• making reasonable adjustments and applying safeguards for autistic people and people with a learning disability; and

• domestic abuse.

These requirements are not exhaustive. Ministers may still add to them but their inclusion on the face of the Bill provides Parliament with greater clarity about how these regulation-making powers will operate in practice.

However, the new provisions have introduced a potential drafting duplication. Clause 8(8) requires regulations to provide that co-ordinating doctors have training on domestic abuse, while clause 8(10) separately requires regulations to specify “that training in respect of domestic abuse, including coercive control and financial abuse, is mandatory”. Since both provisions impose essentially the same duty, they appear to overlap unnecessarily. A similar duplication arises in clause 11(10) and (13) with respect to independent doctors.

Although these repetitions may not change the substance of the duty, they risk creating ambiguity in interpretation.

Peers may wish to consider whether consolidating them into a single, clear provision would improve the drafting.

Most delegated powers in the Bill are discretionary: they allow the Government to make regulations but do not compel it to do so. In the original version, only a handful of powers were mandatory, such as the duty to specify at least one approved substance. The revised Bill, however, converts several of the most significant discretionary powers into duties, compelling Ministers to act.

• Clauses 8 and 11: Training of doctors - Originally, Ministers could decide whether to require additional training or qualifications for doctors involved in assisted dying. The revised Bill now requires regulations to be made which mandate training on specific subjects (e.g., capacity, coercion, domestic abuse and adjustments for autistic people and those with learning disabilities).

• Clause 37: Regulation of approved substances - In the original Bill Ministers were required only to designate at least one approved substance, with regulation of prescribing, dispensing, transportation, handling, and record keeping left to ministerial discretion. The revised Bill makes regulation of several of these areas mandatory:

  • Mandatory: supply, administration, transportation, storage, handling, disposal, and record keeping of approved substances.

  • Discretionary: manufacture, importation, preparation, assembly, and monitoring of approved substances.

  • Ministers also retain discretion over whether to authorise devices for self-administration of approved substances.

• Clause 41: Provision of assisted dying services - the original Bill gave the Secretary of State a broad discretionary power to make regulations securing “that arrangements are made…for the provision of assistance to persons in accordance with this Act”. The revised Bill strengthens this by imposing a duty to make regulations securing “that arrangements are made for the provision of voluntary assisted dying services”. This is explored in further detail in the next section.

In its original form, the Bill offered only the barest indication of how Ministers might use this broad power to make regulations securing arrangements for the provision of assisted dying services. It stated that regulations could “in particular” enable assisted dying to be provided as part of the health service in England and Wales, but without requiring that outcome, or limiting the power to that purpose. As we noted in our earlier briefing[10], this raises fundamental questions:

• would assisted dying services be provided through the public sector, the private sector, or both?

• if public, would they be delivered through the National Health Service or through a standalone service?

• could private providers profit from assisted dying services and, if so, to what extent?

• would NHS-provided services be free at the point of use?

Concerns about the breadth of this power were heightened by the fact that it took the form of a particularly expansive “Henry VIII power”, allowing Ministers to amend any Act of Parliament passed before the end of the current parliamentary session, including the assisted dying bill itself.

At Committee Stage, MPs replaced this clause with what is now clause 41, which retains much of the original scope but makes some important structural changes. The regulation-making power is now split in two.

• Clause 41(1) places a duty on Ministers to make regulations securing the provision of voluntary assisted dying (VAD) services in England. These will be known as “commissioned” VAD services.

• Clause 41(3) creates a discretionary power for Ministers to make further provision about VAD services, regardless of whether they are commissioned under clause 41(1).

The revised clause also gives two specific indications of how the power will be used.

• Regulations may provide that references to the “health service” in section 1 of the National Health Service Act 2006 (NHSA 2006) – which carries forward the founding principles of the NHS originally set out in the 1946 National Health Service Act – include commissioned VAD services.

• Regulations must provide that section 1(4) of NHSA 2006, requiring services to be provided free of charge, applies to commissioned VAD services. This ensures NHS provision of assisted dying services will be free at the point of use, unless Parliament expressly legislates otherwise.

The new Delegated Powers Memorandum (DPM) confirms the Government’s intention that VAD services will be provided “through the National Health Service in England”. It also notes that because complex legislation will be required to establish the service model and adjust commissioning functions, regulations (rather than primary legislation) will be used as they provide the necessary flexibility to align with NHS structures and practices, and to make timely adjustments where needed.[11]

Despite this greater clarity, several uncertainties remain. The role of private providers is still undefined, including whether they may be for-profit, and how they would be remunerated. The DPM leaves this possibility open, noting that regulations may extend existing NHS schemes on licencing, tariffs, and provider selection to VAD services.[12]

It is welcome that all regulations under clause 41 will be subject to the affirmative scrutiny procedure and a statutory duty to consult. Yet these safeguards do not resolve the core issue: the sheer breadth of the power itself. Parliament still lacks clear assurances about how Ministers intend to exercise this power. The next section explores in more detail why clause 41 constitutes an especially wide delegation of power that Peers may wish to address.

A Henry VIII power is a delegated power in an Act of Parliament that enables Ministers to amend, repeal or otherwise alter the effect of primary legislation through delegated (or secondary) legislation. The use of such powers challenges the constitutional principle that Parliament is the sole legislative authority with the power to create, amend or repeal Acts of Parliament. They are also problematic because they permit significant changes to primary legislation to be made by regulations which are generally subject to a lower level of parliamentary scrutiny.

In the original Bill, there was a single Henry VIII power, relating to the provision of assisted dying services. In the revised Bill, that power has been divided into four separate powers across two clauses, collectively retaining its original scope and function. Two entirely new Henry VIII powers have also been introduced, one concerning the regulation of approved substances and the other the prohibition on advertising. As a result, the number of provisions containing Henry VIII powers has risen from one to three.

Each of these Henry VIII powers is drafted in especially broad terms, authorising Ministers to “make any provision that could be made by an Act of Parliament”. This formulation sits at the top end of Henry VIII powers and represents a significant delegation of legislative authority.

In none of the three cases does the Delegated Powers Memorandum provide a clear justification for why powers of this breadth are required. The constitutional presumption remains that matters which require the authority of primary legislation should be set out on the face of the Bill and not left to ministerial discretion.

In its original form, the Bill gave Ministers a particularly far-reaching Henry VIII power to make regulations securing the availability of voluntary assisted dying (VAD) services. That power could be used to amend any Act of Parliament passed before the end of the current parliamentary session, including the assisted dying legislation itself once enacted.

The revised Bill narrows this power in one respect: it can no longer be used to amend the assisted dying Act itself. But in other respects, its scope has widened considerably. Clause 41 now permits Ministers to “make any provision that could be made by an Act of Parliament”.

This formulation carries two significant implications. First, the previous constraint limiting the use of the power to Acts passed before the end of this parliamentary session has been removed. But Ministers may now be able to amend any past or future Act of Parliament. Second, because Acts of Parliament can themselves delegate legislative power, Ministers could in effect use this authority to create sub-delegated powers (tertiary legislation). Such powers receive little or no parliamentary scrutiny.

The DPM justifies the breadth of this power only in general terms, citing the need to adapt regulations swiftly to changing NHS structures and commissioning practices. It also suggests that the power might be used to authorise the Secretary of State to issue directions to bodies delivering VAD services. Such directions would likely be a form of tertiary legislation, and subject to minimal, if any, scrutiny. Both the House of Lords Delegated Powers and Regulatory Reform Committee (DPRRC) and House of Lords Secondary Legislation Scrutiny Committee (SLSC) have criticised the increasing use of tertiary legislation as constitutionally problematic.[13]

The DPRRC has previously raised similar concerns about Henry VIII powers drafted in identical terms. In 2022 the Committee criticised the Northern Ireland Protocol Bill for the absence of meaningful limits on what Ministers could include in regulations, highlighting provisions that would have allowed regulation-making powers to make any provision that could be made by an Act of Parliament.[14] The Government did not proceed with that Bill. The Committee also expressed concern about several powers in the European Union (Withdrawal) Bill 2018, even though the most significant Henry VIII power was circumscribed by six explicit prohibitions (for example, no retrospective legislation, no new or higher taxes, and no creation of serious criminal offences with long sentences). The DPPRC recommended in particular that any tertiary legislation should be made subject to some form of parliamentary scrutiny.[15]

Peers may wish to consider whether any limits should be placed on this power. For example, by ensuring that any tertiary legislation is subject to some form of parliamentary scrutiny.

Clause 37 gives Ministers the power to make regulations governing the supply, manufacture, and handling of approved substances, as well as devices for self-administration. As with clause 41, the regulations may “make any provision that could be made by an Act of Parliament”, the only limitation again being that they cannot amend the assisted dying Bill itself once enacted.

This drafting raises the same constitutional concerns as clause 41. The power could be used to amend any past or future Act of Parliament and to create further sub-delegations of legislative power, opening the door to tertiary legislation with little or no parliamentary scrutiny. The Bill also provides little clarity on how the power will be exercised – for example, how compliance will be enforced, or whether it could be used to create new criminal offences and, if so, with what penalties.

The original Bill included a similar regulation-making power, but it was not a Henry VIII power. The revised drafting therefore represents a significant widening of scope. As noted earlier, regulations under this clause are now subject to the affirmative scrutiny procedure, giving Parliament stronger oversight. However, this upgrade does not address the underlying concern: the breadth of the delegation itself.

Peers may also wish to consider whether any limits should be placed on this power. For example, by ensuring that any tertiary legislation is subject to some form of parliamentary scrutiny.

Clause 43 requires Ministers to make regulations prohibiting the advertising of assisted dying services, while also giving them discretion to create exceptions. As with clauses 37 and 41, these regulations may make any provision that could be made by an Act of Parliament, other than amending the assisted dying Bill itself once enacted. This raises the same constitutional issues already noted in relation to those two clauses. It is welcome that a power of such breadth is at least subject to the affirmative scrutiny procedure. Nonetheless, it would be preferable for the Bill to provide greater clarity on the scope and limits of the prohibition, rather than leaving it to ministerial discretion.

Again, Peers may wish to consider whether any restrictions to circumscribe this power should be added to the Bill, including making any tertiary legislation subject to some form of parliamentary scrutiny.

One way of constraining delegated powers is to require the Government to consult before exercising them. Consultation is not, however, a substitute for parliamentary scrutiny. Indeed, where a regulation-making power is significant enough to justify consultation, it is often significant enough to warrant the affirmative scrutiny procedure, or even to be set out in primary legislation.

In the original Bill only five powers carried a consultation duty: three concerned the training and qualifications required of doctors involved in the process and two concerned codes of practice and guidance on the operation of the Act. Even then, the duty was minimal, requiring Ministers only to consult “such persons as the Secretary of State considers appropriate”.

The revised Bill strengthens the consultation requirements in two ways.

• Extended scope: a duty to consult now applies to regulations setting out the structure and content of the six declarations, statements and reports completed by doctors and patients throughout the process. In addition, a new duty to ensure these six forms are available in Welsh as well as English is also subject to consultation with Welsh Ministers.

• Greater specificity: the Bill now identifies in more detail who must be consulted for each power, giving Parliament and stakeholders greater certainty about how consultations will be carried out.

The Appendix summarises the consultation requirements in the original and revised bills.

However, two notable omissions from the consultation duty remain.

The consultation duty has not been extended to the power to make regulations about independent advocates, even though the Government’s DPM expressed an intention to consult disability rights organisations and the Equality and Human Rights Commission (EHRC) before making them.[16] Extending a statutory duty to consult in this area would provide greater clarity and reassurance to Parliament and to those directly affected. Other parts of the Bill already require consultation with the EHRC and, where relevant with experts on capacity and/or coercion. It is not clear why an equivalent duty to consult has therefore not been included in relation to independent advocates.

Peers may therefore wish to consider whether a statutory duty to consult the EHRC and, where appropriate, persons with expertise in disability rights in respect of independent advocates should be added to the Bill.

The consultation duty has also not been extended to the powers in clauses 27 and 37 to designate the approved substances to be used in assisted dying and establish a regulatory framework for those substances.

As outlined in our earlier briefing, two other Acts of Parliament relating to the designation of substances include an explicit consultation requirement.[17]

• Misuse of Drugs Act 1971: The Act requires that when the Government wishes to lay regulations to add or remove an item from the list of controlled drugs, it can only do so if it has consulted with, or is following a recommendation from, the Advisory Council on the Misuse of Drugs.

• Medicines Act 1968: Section 62 grants the Secretary of State the power to prohibit the sale or supply of specified medicinal products. Except in urgent circumstances, this power is subject to a requirement to consult with either the Commission on Human Medicines or a specially appointed expert committee before such an Order can be made.

The approved substances designated by the Secretary of State could include licensed drugs which go beyond the purpose for which they were licensed, or unlicensed drugs. As drafted, the decision as to which drugs are used is the Secretary of State’s alone: if they choose, the Secretary of State could designate any substance they like, with insufficient regard to scientific evidence or without consultation with appropriate persons or bodies. Assurances that the Minister would consult are assurances only, and not requirements.

At House of Commons Committee Stage, the sponsor of the Bill, Kim Leadbeater, said the following about the designation of approved substances:

“My view is that this is very clearly a matter for the Secretary of State, but with expert clinical and medical guidance. These are the people who should be making the decisions about such drugs. The evidence about this type of medication exists. As part of the commencement period and the consultation period, I anticipate there will be wide consultation about the drugs that are available. I think it is best left with the Secretary of State, so I would leave the clause unamended.”[18]

If the decision is properly for the Secretary of State to take in line with expert guidance, and the Government anticipates a wide consultation about the drugs that are available, then the Government should have few qualms about including a formal consultation requirement in the Bill.

A similar case can be made for the regulatory framework on the handling, supply and transport of those drugs. Designing an appropriate framework will require significant expertise, and Parliament may be reassured if the Bill required the Secretary of State to consult relevant experts before making such regulations.

Peers may therefore wish to consider whether the powers to designate approved substances and establish a regulatory framework for those substances should be subject to a formal consultation requirement.

[1] England, M. (23 January 2025), Terminally Ill Adults (End of Life) Bill: Concerns about the delegated powers (London: Hansard Society)

[2] Reference here to “amendments” includes amendments, new clauses, new schedules, removed clauses and removed schedules.

[3] Rough, E., Rowland, L., and Lipscombe, S., Terminally Ill Adults (End of Life) Bill 2024-25: Progress of the bill, House of Commons Library Briefing Paper, 9 May 2025, p. 5; and Terminally Ill Adults (End of Life) Bill, House of Lords Library Briefing Paper, 29 July 2025, p. 1.

[4] The Employment Rights Bill, for example, doubled in length during its Commons passage from 149 pages to 299 pages, and its delegated powers increased from 86 to 173.

[5] House of Lords Delegated Powers and Regulatory Reform Committee (2019-21), 13th Report, HL Paper 69, para. 6

[6] House of Lords Delegated Powers and Regulatory Reform Committee (2019-21), 19th Report, HL Paper 109, para. 30

[7] Department for Health and Social Care and the Ministry of Justice, Delegated Powers Memorandum: Terminally Ill Adults (End of Life) Bill, 26 June 2025, p. 25

[8] Department for Health and Social Care and the Ministry of Justice, Delegated Powers Memorandum: Terminally Ill Adults (End of Life) Bill, 26 June 2025, p. 25

[9] House of Commons, Public Bill Committee: Terminally Ill Adults (End of Life) Bill, 25th Sitting, 18 March 2025 (Afternoon), PBC (Bill 012) 2024-25, cols. 1225-1226

[10] England, M. (23 January 2025), Terminally Ill Adults (End of Life) Bill: Concerns about the delegated powers (London: Hansard Society)

[11] Department for Health and Social Care and the Ministry of Justice, Delegated Powers Memorandum: Terminally Ill Adults (End of Life) Bill, 26 June 2025, pp. 43-44

[12] Department for Health and Social Care and the Ministry of Justice, Delegated Powers Memorandum: Terminally Ill Adults (End of Life) Bill, 26 June 2025, pp. 45

[13] See, House of Lords Delegated Powers and Regulatory Reform Committee (2021-22), Democracy Denied? The urgent need to rebalance power between Parliament and the Executive, 12th Report, HL Paper 106, paras. 107-112; and House of Lords Secondary Legislation Scrutiny Committee (2021-22), Government by Diktat: A call to return power to Parliament, 20th Report, HL Paper 105, paras. 45-46.

[14] House of Lords Delegated Powers and Regulatory Reform Committee (2021-22), 7th Report, HL Paper 40, paras. 6-9

[15] House of Lords Delegated Powers and Regulatory Reform Committee (2017-19), 12th Report, HL Paper 73, paras. 6-16

[16] Department for Health and Social Care and the Ministry of Justice, Delegated Powers Memorandum: Terminally Ill Adults (End of Life) Bill, 26 June 2025, pp. 25

[17] England, M. (23 January 2025), Terminally Ill Adults (End of Life) Bill: Concerns about the delegated powers (London: Hansard Society)

[18] House of Commons, Public Bill Committee: Terminally Ill Adults (End of Life) Bill, 25th Sitting, 18 March 2025 (Afternoon), PBC (Bill 012) 2024-25, col. 1226