Assisted suicide has cleared its first hurdle in the Scottish parliament, but there could be many more to come. On Tuesday evening, MSPs voted 70 to 56 to progress Liam McArthur’s Assisted Dying Bill. It would allow patients to request and be prescribed lethal drugs if they are diagnosed with an advanced, progressive and unrecoverable condition which ‘can reasonably be expected to cause their premature death’. The patient would have to be 16 or older and mentally competent and, unlike Kim Leadbeater’s Commons bill, which is limited to those with no more than six months to live, McArthur’s Bill would not require that the patient be in the final stages of their life.
While Keir Starmer supports legalisation in England, the Holyrood bill is proceeding despite opposition from First Minister John Swinney. (His predecessors Humza Yousaf and Nicola Sturgeon also voted No yesterday.) Several MSPs who voted to allow the bill to go to stage two said they did not support the legislation in its current form and would have to see satisfactory amendments before they could vote for it again. But even if the bill ultimately passes Holyrood, it is likely to face legal challenges and implementation difficulties.
In April, three legal experts penned a joint letter to Holyrood’s health committee outlining their view that the bill was outwith the powers of the Scottish Parliament. Among the provisions which Dr Mary Neal, Dr Murray Earle, and Dr Michael Foran say ‘exceed Holyrood’s legislative competence’ is the power for Scottish ministers to regulate which substances can be used for assisted suicides, since medicines, poisons and similar matters are reserved to Westminster. They believe the provision allowing medics to refuse to participate in a patient’s death on grounds of conscience would also be ultra vires since regulation of health professionals is another reserved matter.
The trio of law lecturers believe the Bill in its entirety requires a Section 30 order, the mechanism by which Westminster allows the Scottish parliament to exercise reserved powers. This, they assert, ‘raises considerable potential for conflict… over divisive constitutional questions of devolved versus reserved powers.’ Even though the Prime Minister backs assisted suicide, securing a Section 30 order is typically a lengthy process and the politics involved are fraught and tend to heighten tensions between the Scottish and UK governments.
There could be a challenge to the legislation under the ECHR
The potential for the Assisted Dying Bill to become the subject of constitutional controversy is likely to draw attention to the Scottish Conservatives. One-third of Tory MSPs voted for the legislation, including the party’s leader Russell Findlay. Their votes proved decisive: had they voted the other way, the bill would have fallen. While assisted suicide is considered a conscience matter, the prospect of a constitutional dispute between Holyrood and Westminster ahead of the 2026 devolved elections, something that could motivate SNP voters to turn out to the polls, would not be welcomed by most Scottish Tory voters. That a substantial number of Conservative MSPs helped it happen would be particularly galling. The Scottish Tories are already haemorrhaging votes to Reform. Their core vote does not need any more prompting to abandon the party or stay home on election day.
In addition, there could be a challenge to the legislation under the European Convention on Human Rights, perhaps from disability campaigners who have voiced strong reservations about unintended consequences in relation to disabled people. There are also questions about the breadth of the bill’s definition of terminal illness and the as yet unspecified drug cocktail that would be given to patients to kill themselves. Assisted suicide is well on its way to becoming law in Scotland, but the fight isn’t over yet.
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