Entire Assisted Dying Bill may be beyond Holyrood's powers, warn legal experts

Plans to legalise assisted dying in Scotland may be entirely beyond the powers of Holyrood, legal experts have warned.

Academics said there could be “a long and contentious road ahead” for the Assisted Dying for Terminally Ill Adults (Scotland) Bill.

The proposals by Liberal Democrat MSP Liam McArthur are expected to be voted on in the coming months. They would give people over the age of 16 with a terminal illness the option of requesting an assisted death.

Liberal Democrat MSP Liam McArthur is advancing his Assisted Dying for Terminally Ill Adults (Scotland) Bill through Holyrood | Jeff J Mitchell/Getty Images

However, the plans have proved hugely controversial, and the Scottish Government previously said parts of the legislation could be beyond Holyrood’s powers, such as issues relating to lethal drugs, which are reserved to Westminster.

Mr McArthur said he had held “constructive” talks with UK ministers, and had always been clear over the need for a transfer of powers.

But a new blog post by academics from Glasgow, Edinburgh and Strathclyde universities has now raised wider concerns about the Bill’s legislative competence.

Writing on the Scottish Legal News website, Dr Michael Foran, Dr Murray Earle and Dr Mary Neal referenced the issues highlighted by the Scottish Government, adding: “In our view, however, these are not the only issues of legislative competence.”

They argued the Bill’s primary purpose “relates to the reserved matter of regulating the health professions”, adding: “Were it to become law, the Bill – together with the regulations issued under it – would specify in some detail the requirements that health professionals must follow at every stage of the process: before, during, and after the death of the patient.

“As such, in our view, the overall focus and primary purpose of the Bill lies beyond the legislative competence of Holyrood.”

The experts said the Bill as a whole would require a section 30 order to allow Holyrood to legislate in this area, and this would need the consent of Westminster and the House of Lords and could take up to 18 months.

“In our view, the Bill as a whole requires a section 30 order,” the academics wrote. “But whether the issues with legislative competence affect the Bill as a whole or are tied to particular provisions, there could be a long and contentious road ahead for the Assisted Dying Bill at Holyrood.

“There is considerable potential for conflict, not only around the hugely controversial issue of assisted dying itself, but also over divisive constitutional questions of devolved versus reserved powers.”

Mr McArthur said: “The Presiding Officer has certified that the bill is within the powers of the parliament as it stands and can be passed by the Scottish Parliament.

“I have always been clear that in order for the new law I'm proposing to work in the way I envisage, both UK and Scottish governments would need to agree on the transfer of certain powers. There are established mechanisms for doing this, a point recognised by Dr Neal, Dr Earle and Dr Foran in their assessment of the bill.

“Once MSPs have decided if they back the general principles of my bill at Stage 1, I would expect both governments to take forward this work in keeping with the will of parliament.

"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.

“Any change in the law to allow for more choice and compassion at the end of life must be introduced carefully and sensitively, which is why I have taken the approach I have in relation to drafting my bill and consulting with the widest possible range of stakeholders.

“That is the right approach and what the public in Scotland, who remain overwhelming supportive of a change in the law, have a right to expect from their parliamentarians."