Assisted dying is beyond the powers of Scottish Parliament, says SNP

The Scottish Government has said Westminster will need to approve Scotland’s assisted dying legislation before a final vote at Holyrood.

SNP Health Secretary Neil Gray has said assisted dying proposals tabled at Holyrood are outwith the powers of the Scottish Parliament.

Liberal Democrat MSP Liam McArthur has lodged a members bill to legalise and regulate assisted dying in Scotland.

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The proposals would give people over the age of 16 with an advanced terminal illness the option of requesting an assisted death. It is the third time MSPs have considered the issue, with two previous attempts to change the law overwhelmingly defeated.

Liam McArthur after publishing his Assisted Dying for Terminally Ill Adults (Scotland) BillLiam McArthur after publishing his Assisted Dying for Terminally Ill Adults (Scotland) Bill
Liam McArthur after publishing his Assisted Dying for Terminally Ill Adults (Scotland) Bill

The MSP has previously highlighted that an agreement with Westminster would be needed for his proposed legislation to become law and stressed the Presiding Officer of the Scottish Parliament has ruled that the legislation could be introduced at Holyrood.

The Scottish Government has now stressed that agreement from Westminster in some matters will need to be sought before the legislation reaches stage three, the final legislative hurdle - which could take up to 18 months.

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It is believed that supply of drugs and matters relating to medical professionals carrying out any procedure contained in the legislation will need the approval of the UK government.

In a letter to Holyrood’s health committee, Mr Gray has stated that the legislation, “in its current form”, is “outside the legislative competence of the Scottish Parliament”.

The Health Secretary has highlighted that the drugs that would be used to end someone’s life “appears to relate to the reserved matter of medicines, medical supplies and poisons”, while the legislation “represents a novel and fundamental shift in the role of medical practitioners, and the regulatory framework in which they operate”.

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Mr Gray said that the bill allowing Scottish ministers to set out “qualifications and experience of registered medical practitioners who can carry out functions” and other matters relating to medical professionals would likely need the support of Westminster.

Documents submitted by Mr McArthur alongside his legislation referenced the potential need of orders under the Scotland Act, including a section 30 order, for his bill to become law.

Health Secretary Neil GrayHealth Secretary Neil Gray
Health Secretary Neil Gray

A source close to discussions between Mr McArthur and the Scotland Office said talks so far have been “constructive”.

In his letter, Mr Gray added: “It should be noted that the process for such an order generally takes 12-18 months and would require the co-operation of the UK government, as it requires the approval of both houses at Westminster, as well as the Scottish Parliament, before it is made by His Majesty in Council.

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“This process would need to be completed prior to a vote being taken on the bill at stage 3.”

Mr Gray has also warned that the costs of introducing assisted dying in Scotland could be “substantially higher” than estimated - claiming that some costs had been omitted or underestimated in financial papers put forward alongside the bill.

Mr McArthur estimated introducing assisted dying would cost between £263,434 and £313,882 in its first year.

The ongoing costs would then range from between £23,107 and £35,566 in the second year – with these estimated to have risen to between £160,186 and £368,954 after 20 years.

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The financial memorandum for the bill had “estimated that costs will be relatively low, due to the small number of terminally-ill people expected to seek an assisted death” – noting that the number of people “likely” to have an assisted death if the bill was passed could be between approximately 25 and 400 people each year.

The Scottish Government memorandum said: “It is difficult to assess the accuracy of the estimated costs/savings in the financial memorandum, given the uncertainty around the likely number of cases and, in particular, how they will increase over time.

“The Scottish Government is, however, of the view that the unit costs of staff time have been underestimated, as this is costed using unrealistically low salaries.”

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It added that the cost of staff time for training had been “omitted” from the costings, adding: “This is a significant omission as most health professionals would need to be trained (if they do not opt out), so that they can respond appropriately and legally process any request for assisted dying. ”

With training “broadly speaking” expected to take a day for each health professional taking part, the Government said: “As such, it is our view that the costs associated with the Bill could be substantially higher than estimated in the financial memorandum.”

Liam McArthur, MSP for Orkney.Liam McArthur, MSP for Orkney.
Liam McArthur, MSP for Orkney.

Mr McArthur said: "I welcome the input of the Scottish Government and the commitment it has made to ensure a free vote on the bill alongside its position of neutrality on assisted dying.

"The Presiding Officer has certified that the Scottish Parliament can pass a bill in this area but I have always been clear that the Scottish and UK Governments will need to agree to measures that will ensure that a truly comprehensive assisted dying process can operate in Scotland.”

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He added: "There are established mechanisms for transferring powers to enable legislation to be fully enacted in Scotland and no reason why these cannot be applied in this case.

"Our current laws on assisted dying are failing too many terminally ill Scots, often leaving them facing an undignified and sometimes painful death despite the very best efforts of palliative care. The bill I have put forward will give terminally ill, mentally competent adults the option to control the manner and timing of their death."

But Dr Gordon Macdonald, CEO of Care Not Killing, which leads opposition to the bill, claimed his organisation has “been warning this was the case for some considerable time”.

He added: “The only time such powers have been granted in the past was for the independence referendum and to take such action on such a matter would open up a can of worms for Westminster.

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“The proposed bill pulled the wool over people’s eyes to try and secure support.

“It fails to take into account that drug licensing and medical regulations are reserved to Westminster but the Liam McArthur Bill tries to imply there would be no problems on these matters.

“Clearly, that is not the case and the SNP government has made its views most clear that the Bill is potentially fatally flawed and not fit for purpose.”

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