Assisted dying: MSPs have difficult questions to answer

Ahead of the debate, both backers and opponents expected it to scrape through – narrowly. The best guess being bandied around Holyrood’s corridors was 64–62.

In the end, MSPs voted 70 to 56 to progress the Bill to Stage 2.

But were they all voting on the same thing?

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They were supposed to be voting on the general principles of the Bill drafted by McArthur and his team, but some were, it seems, voting on the general principles of assisted dying.

Some MSPs who voted in favour – including Scottish Government minister Jim Fairlie and Scottish Conservative leader Russell Findlay – said they did so to continue the debate.

But really, the time for debate is over. What is needed now is scrutiny.

Are MSPs up to the task – especially given how little time they have?

For assisted dying to become law, McArthur must shepherd it through all Parliamentary stages before Holyrood dissolves at the end of March next year ahead of the election.

With Stage 2 likely to begin in September, his team says it is confident of completing the process in time.

But Dr Mary Neal, a Reader in Law at the University of Strathclyde, told The Herald that MSPs face a “massive, mammoth task to try and address all of the really serious issues with the Bill”.

“This particular Bill is just riddled with massive problems – and in some cases, unfixable problems,” she said.

Concerns have been raised over eligibility criteria, the definition of terminal illness, and the complexity of assessing capacity and coercion – including so-called internal coercion.

One of the most significant questions is whether Holyrood even has the power to legislate for assisted dying.

“Is this Bill even legislatively competent? I do not think it is,” said Dr Neal.

Regulation of medicines, poisons and similar matters is reserved to Westminster, meaning Scottish ministers lack the power to specify which substances could be used in assisted dying.

There are also questions over the conscience clause in the Bill, which allows medical professionals to opt out of participating. Regulation of health professionals is also a reserved matter.

Overcoming these issues would likely require a Section 30 order – the mechanism in the Scotland Act that temporarily transfers powers from Westminster to Holyrood.

That is not a straightforward process.

It could become even more difficult if Labour MP Kim Leadbeater’s bid to introduce assisted dying legislation in England and Wales fails.

Given opposition from groups such as the Royal College of Psychiatrists, that outcome is far from unlikely.

"I think a lot's going to hinge on the Leadbeater Bill and it's fate," says Dr Neal, "because I think it could have a bearing on the willingness of the authorities at Westminster to grant section 30 orders as needed.

"So it could have a procedural impact on the Bill and a political impact on the Bill, even though, in principle, they're two separate processes."

Is this a fight First Minister John Swinney – who did not vote for the Bill – would be eager to have?

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Interestingly, Health Secretary Neil Gray told journalists on Tuesday night that the Scottish Government’s neutral position on McArthur’s Bill would be “under review” as MSPs move to this next stage.

Tuesday’s debate was among the most thoughtful Holyrood has seen: personal, emotional, considered. But now it's time for scrutiny and interrogation and practical considerations. 

MSPs did not vote for an ideal – they voted for Liam McArthur’s Bill.