Legal experts have warned that MSP Liam McArthur’s Assisted Dying for Terminally Ill Adults (Scotland) Bill “may be beyond the powers of the Scottish Parliament” to enact, and even if passed, “the new law would be either unworkable or extremely dangerous”.
Legal experts Mary Neal, Murray Earle and Michael Foran relayed their concerns to the outlet Scottish Legal News this week regarding the legislative authority of the Scottish Parliament to implement McArthur’s assisted suicide bill.
“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”, the academics warned in a co-authored article.
McArthur’s Bill is at stage one, and a debate and vote on the proposed legislation is set to take place by May. However, legal experts write that “there is little doubt that particular provisions [of the Bill] exceed Holyrood’s powers”, since, even after devolution, “powers relating to medicines, medical supplies, and poisons” are reserved to the UK Parliament.
“Regulation of the health professions is reserved under Schedule 5 Head G2 of the 1998 Act”, the experts added.
The Scotland Act 1998 established the Scottish Parliament and devolved certain powers from the UK Parliament to Holyrood, such as local councils, housing, education and NHS Scotland. Powers including the military, immigration and foreign policy are reserved.
Neil Gray MSP, the Cabinet Secretary for Health and Social Care, has already registered his “particular concern” about McArthur’s Bill in this regard, stating that “the issue of what steps will be required to bring the bill within legislative competence will require to be revisited should the bill pass stage one”.
The authors of the Scottish Legal News article also warned that the Bill’s provision allowing medics to opt out of participating in assisted suicide also “relates to a reserved matter, since the conscience clause would be exercised mainly by health professionals”.
Critically, the authors noted with alarm that the Bill “has been designed to pass into law with or without the provisions relating to reserved matters… This means that parts of the bill that are not competent will simply disappear when the bill becomes law.”
They continued: “If the bill were to become law without ministers having the power to approve substances, or to specify the qualifications and experience a medical professional needs to have before they can perform the roles set out in the bill, the new law would be either unworkable of extremely dangerous. If it were to become law without any provision for conscientious objection, this would be completely unacceptable to the professions.”
Finally, the legal experts explained that “presumably” only a Section 30 Order (part of the Scotland Act) could permit Holyrood to approve such regulation usually reserved to Westminster, but this would require the consent of both Houses of the UK Parliament. One such order was denied in 2017 when Nicola Sturgeon requested the power to hold an independence referendum.
“In our view, the bill as a whole requires a section 30 Order”, the article concludes, alerting readers that “a long and contentious road [lies] ahead for the Assisted Dying Bill at Holyrood”.
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