Lawyers examine assisted dying plan to avoid gender bill style clash

The Lib Dem MSP spoke out after the UK Government last week stepped in to stop the Gender Recognition Reform Bill, passed by Holyrood in December, from being given Royal Assent.

It was the first time a Secretary of State for Scotland has triggered Section 35 of the Scotland Act 1998 and by doing so blocked the Scottish Government's plans to make it easier for people to change their legal gender.

Scottish Secretary Alister Jack said he had taken the action after receiving legal advice from government lawyers that the GRRB encroached on the UK's Equality Act, a reserved law.

First Minister Nicola Sturgeon said the move could lead to UK ministers repeatedly using the blocking device.

"If this Westminster veto succeeds, it will be first of many," she said.

Mr McArthur said one area where legal advice was being given on his member's bill was on the matter of professional regulation.

His bill intends to include a clause allowing doctors and other medical staff to exercise their conscience so that they would not have to be involved in assisted dying procedures if they had a personal objection.

However, it is not clear which parliament would have the power to enact a conscience clause as the body responsible for the regulation of medics, the General Medical Council, is accountable to Westminster.

"The issue around conscientious objection does touch on the regulation of professional bodies and therefore that would be something that would need to be agreed through some mechanism," said Mr McArthur.

"There are a number of ways which this can be resolved and I would hope and expect there to be discussion to enable those issues to be resolved. There are various orders which could be laid to allow that. It is something I am discussing with officials."

Abortion was devolved to Holyrood in 2015 and there is conscientious objection provision in abortion law. Some belief this sets a precedent for the Scottish Parliament legislating on the matter in terms of assisted dying.

But there is also an argument that as the regulation medical professionals is reserved then the conscience clause in the bill would need agreement with Westminster.

If legal advice suggests that the issue is reserved then Mr McArthur could seek a Section 104 from the UK Government to devolve the conscience clause responsibility for the assisted purpose of assisted dying legislation.

Mr McArthur, who is also a deputy presiding officer in the Scottish Parliament, last year said he was confident his bill would be passed given considerable backing it received during its consultation period.

He also pointed to a change in attitudes among some MSPs and further safeguards in his legislation since previous attempts to bring in assisted dying laws in Scotland were defeated.

Mr McArthur gained the necessary cross party support for his plans last October for his member's bill to be introduced and since then has been drafting the document.

His bill would legalise assisted dying for who had been diagnosed with a terminal illness. It would include a requirement that the person seeking assistance must be 16 years of age or over - in line with wider Scots law on legal capacity - and have been a resident of Scotland for at least twelve months.

He has previously said his proposals included tighter restrictions on eligibility and more safeguards than previous members’ bills by the Scottish Greens co-leader Patrick Harvie in 2015 and the late independent MSP Margo MacDonald. Assisted dying laws have been introduced in Australia and New Zealand.

However, apart from making sure the bill was robustly drafted and being mindful of any potential clashes with UK laws he did not see any implications for his assisted dying legislation from the GRRB.

"I think because we have had two bills in the past where the extent of devolved and reserved powers lie in relation to [assisted dying] are probably more clearly understood," said Mr McArthur.

"There was a very rigorous process that was undertaken into whether or not they fell within devolved competencies and the Presiding Officers in both cases determined that they did. Any bill that is passed in parliament is open to legal challenge. There are issues that relate to the regulation of professional bodies which will touch on the ability to reflect the need to include a conscientious objection for example.

"Those with an active involvement in the process should be safeguarded and those are conversations that need to be had. I am certainly very open to have those.

"Their argument they have about GRR is about the impact it has on the Equalities Act and the impact it would have on those in England and Wales impacted by the way in which GRR allow gender recognition certificates to be awarded. It's hard to see how they would make a similar argument in terms of the choice of an assisted death in Scotland.

"It is firmly established that the Scottish Parliament has the powers to legislate in this area, but there are aspects which touch on reserved areas and those need to be resolved."

Both the UK and Scottish Government oppose assisted dying but the situation north of the border would change if Mr McArthur's bill successfully passes through Holyrood.

However, there are no plans for Westminster to change its law opposed to assisted dying leading to two different systems in the UK on a highly sensitive issue.

"The arguments in relation to GRR are the way in which it impacts upon UK legislation and upon those in other parts of the UK. I cannot see how an assisted dying act and the rights and the choice that would come with that have any bearing on other parts of the UK beyond the aspect of professional responsibility."

Ally Thomson, Director, Dignity in Dying Scotland said: "Liam McArthur’s Assisted Dying Bill is a much needed, measured reform which extends greater compassion and choice to dying people and puts safety in place where there is currently none.

"Giving dying Scots the right to choose when to end their own suffering has overwhelming backing from the Scottish public and widespread support from across all parties in the Scottish Parliament.

"We know, as the staggering number of personal testimonies in response to the Bill’s public consultation showed,  that the current law doesn’t work . It forces dying people into intolerable situations such as trying to travel to Switzerland or secretly taking matters into their own hands.

"A tightly drawn, safeguarded law that works alongside excellent palliative care would instead allow terminally ill adults to choose the death that is right for them.  To give dying people what they need, when they most need is compassionate common sense.”

MSPs are expected to be given a free vote, meaning they can vote with their own conscience and not according to party lines, when the assisted dying bill comes being the Scottish Parliament.

Mr McArthur told the Herald on Sunday he hoped the bill would be introduced to Holyrood in the first half of this year.

A UK Government spokesperson said: "The UK Government considers all Scottish Parliament legislation after each bill concludes its passage through the Scottish Parliament. This has been the case since the beginning of devolution."

Speaking in the House of Commons last Tuesdya, Mr Jack suggested the Section 35 order would not be routinely used in future.

He said: “We should be clear that this is absolutely not about the United Kingdom Government being able to veto Scottish Parliament legislation whenever it chooses, as some have implied.

"The power can only be exercised on specific grounds and the fact that this is the first time it has been necessary to exercise the power in almost 25 years of devolution emphasises that it is not a power to be used lightly.”