How Holyrood warning to 'tread carefully' could help assisted dying over the line

The third attempt at legislating for assisted dying in Scotland could have the best chance of making it into law - but the Scottish Parliament is doing its utmost to avoid another almighty stand-off with Westminster.

The Scottish Government, which won’t have a position in favour or against the legislation, has now explicitly warned that Liam McArthur’s proposed legislation will need approval of Westminster to make it over the line.

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

We have been here before. Former Scottish secretary Alister Jack blocked the gender recognition reforms, backed by the vast majority of MSPs at Holyrood - and put the brakes on the deposit return scheme.

The Scottish Government tied itself in knots over plans to embed the UN right of the child into Scots law - pushing the legislation outside of devolved competence - possibly as a test of devolution for the then-upcoming proposals for Holyrood to legislation for its own independence referendum.

Scottish Liberal Democrat MSP Liam McArthur published his Assisted Dying for Terminally Ill Adults (Scotland) Bill in March this year (Picture: Jeff J Mitchell/Getty Images)

First Minister John Swinney, who played a crucial role in talks with the UK government over the right of the child legislation, admitted to MSPs last week that his plans had “clipped” UK laws.

Interestingly, Mr Swinney warned there is a need to “tread here with care” in the future - with SNP ministers more inclined to mirror and work with the UK government over the reworked deposit return scheme, a ban on conversion therapy and the human rights bill.

Could the same also be true for assisted dying?

SNP Health Secretary Neil Gray has penned a letter to Holyrood’s health committee, warning that Westminster approval through a section 30 of the Scotland Act, made famous by the independence referendum, will need to take place before the plans go to a final Holyrood vote.

We are still a long way from stage 3 of the Holyrood legislative process. The biggest challenge for Mr McArthur will be to get enough MSPs to support his bill at stage 1 for it to proceed. The previous two attempts failed to get past that first milestone, but with public attitudes shifting, this is likely the best chance.

Patrick Harvie, who took on the bill last time after Margo McDonald passed away, received criticism over a lack of details - with the specifics largely contained in the published policy memorandums rather than the legislation itself, which allowed it to avoid issues of legislative competence.

But Mr McArthur has chosen a different strategy - one that has been transparent from the get-go.

Critics of the bill, the Care Not Killing organisation, has claimed it has been warning the legislation does not meet Holyrood competence “for some considerable time”. But so too has Mr McArhur.

The Orkney MSP has been upfront about the need for approval from Westminster for his legislation to be pushed forward. Those close to him say that talks that have already been under way with the UK government’s Scotland Office have gone well.

Keir Starmer has indicated he is open to a discussion around assisted dying and we may see movement on a UK bill in the coming months.

Strong signals from Westminster that there is an appetite for a controversial but thought-out piece of legislation would give confidence to those MSPs still on the fence about whether to help the bill over its first Holyrood hurdle. To do so would be a truly monumental achievement.