Scotland’s Health Secretary has said an assisted dying bill going through Holyrood falls outwith the Parliament’s powers. Neil Gray said issues relating to end-of-life drugs are reserved to Westminster and not under the control of MSPs.
Lib Dem MSP Liam McArthur’s Bill would introduce the right to an assisted death for terminally ill, mentally competent adults.
Under the proposal, two doctors would have to independently confirm the person meets the criteria and the individual would have to sign a written declaration. Two previous attempts at legislating in this area have failed, but McArthur is hopeful he has the votes.
In a submission to the Holyrood Health Committee on behalf of the Government, Gray said Ministers would have a free vote on the Bill and called for the debate to be conducted sensitively.
He also said the Government would be neutral at this stage and listen carefully to the evidence. However, he wrote: “In the Scottish Government’s view, the Bill in its current form is outside the legislative competence of the Scottish Parliament.”
Gray said of “particular concern” was a section of the Bill which gives Ministers powers to specify which drugs could be used to end a life.
He said this provision “appears to relate to the reserved matter of medicines, medical supplies and poisons”. He also said other parts of the Bill “may” be reserved to Westminster, such as allowing Ministers to state the qualifications of medical practitioners who can be part of the process.
Gray said another issue of legal uncertainty is in relation to requiring a doctor to take into account a second opinion. He also said the right to conscientious objection, which is part of the Bill, “may” not be a devolved matter.
He said temporarily allowing Holyrood to legislate in these areas via a section 30 order may be required: “The Scottish Government agrees that further processes would have to be gone through in order to bring the Bill within competence.
“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.”
A section 30 allowed the Parliament to legislate for an independence referendum. McArthur has previously accepted two issues may require UK Ministers granting temporary permission to legislate.
He told the Record last year said a so-called Section 30 order may be needed to guarantee the right of conscientious objection for health staff.
He said this would come in the form of changing the regulation of health professionals – a reserved issue: “I absolutely understand why having your professional body backing that and providing further reassurance is desirable”.
“It would allow the reassurance that, if they had a conscientious objection, they would be entitled to absent themselves from the process.” The MSP also said a Section 30 could be needed to ensure that specific drugs could be used for end of life purposes.
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