Assisted dying bill may be outside Scottish Government's powers, ministers warn

A bid to introduce assisted dying for terminally ill Scots may be outside Holyrood’s powers, the Scottish Government has warned.

It comes as the government also raised concerns that the costs of introducing assisted dying could be “substantially higher” than estimated.

The concerns were revealed in a memorandum sent by health secretary Neil Gray to MSPs on Holyrood’s Health Committee.

It comes after Liberal Democrat MSP Liam McArthur introduced a Bill at Holyrood that, if passed, would give terminally ill adults in Scotland the right to request help to end their life.

MSPs on the Health Committee will consider the Assisted Dying for Terminally Ill Adults (Scotland) Bill, before it is voted on by Holyrood as a whole.

But a memorandum from the government, sent to the health committee was clear: “In the Scottish Government’s view, the Bill in its current form is outside the legislative competence of the Scottish Parliament.”

A “particular concern” stems from the legislation giving powers to ministers to specify the drug that would be used for assisted deaths – with the Scottish Government stating this “appears to relate” to “medicines, medical supplies and poison” – an area where legislation is reserved to Westminster.

While Westminster could grant a section 30 order – which would allow Holyrood to legislate in this area – the Scottish Government said this could take between 12 and 18 months to arrange, adding that this would need to be completed before MSPs could grant final approval to the Bill.

McArthur said that while Holyrood presiding officer Alison Johnstone had “certified that the Scottish Parliament can pass a Bill in this area”, he had “always been clear that the Scottish and UK Governments will need to agree to measures that will ensure that a truly comprehensive assisted dying process can operate in Scotland”.

He added: “There are established mechanisms for transferring powers to enable legislation to be fully enacted in Scotland and no reason why these cannot be applied in this case.”

However, campaigners against assisted dying said the Scottish Government had shown that Mr McArthur’s Bill was “potentially fatally flawed”.

Gordon Macdonald, chief executive of campaign group Care Not Killing said: “We have been warning this was the case for some considerable time.”

He claimed McArthur’s Bill “fails to take into account that drug licensing and medical regulations are reserved to Westminster”, adding that “the SNP Government has made its views most clear that the Bill is potentially fatally flawed and not fit for purpose”.

Similarly, Miro Griffiths of the Better Way group said the “Scottish Government has rightly recognised significant issues with Liam McArthur’s Bill”.

Meanwhile, the Scottish Government memorandum also said some costs had been omitted or underestimated in financial papers put forward with McArthur’s Bill

It claimed that costs for staff time had been “underestimated” and had been calculated using “unrealistically low salaries”.

Meanwhile, the cost of training stuff was “omitted” from the Bill’s financial papers, with the Scottish Govenrment stating: “This is a significant omission as most health professionals would need to be trained (if they do not opt out), so that they can respond appropriately and legally process any request for assisted dying.”

With training “broadly speaking” expected to take a day for each health professional taking part, the Government said: “As such, it is our view that the costs associated with the Bill could be substantially higher than estimated in the financial memorandum.”

The Scottish Government “will be maintaining a neutral position on the Bill at this stage”, the memorandum said, with ministers to be given a free vote when it comes before MSPs.

McArthur said he welcomed the government’s commitment “to ensure a free vote on the Bill alongside its position of neutrality on assisted dying”.

The Liberal Democrat MSP added: “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.

“The Bill I have put forward will give terminally ill, mentally competent adults the option to control the manner and timing of their death.”

A UK Government spokesperson said: “As with all Scottish Parliament legislation, we will consider the Bill in the usual way at the appropriate time.”