Assisted dying bill vote could hinge on three MSPs

After four very long days of, at times, heated debate, including a rare Friday sitting, the draft legislation has changed significantly since it was first introduced.

Some 175 amendments have been accepted. Of those, 83 came from MSPs who voted against the Bill last May.

If the Bill is passed on Tuesday, the new law will allow adults expected to die within six months to receive medical assistance to end their own lives, if a series of eligibility tests and procedural safeguards are met.

Terminally ill women (left to right) Lisa Fleming, Tish McEwan and Lorna Weir meet with Liam McArthur (Image: Jane Barlow/PA)

Only those aged 18 or over, who have been ordinarily resident in Scotland for at least a year and are registered with a Scottish GP will qualify.

A person will only be considered terminally ill if they have an advanced, progressive condition from which they cannot recover and which is reasonably expected to cause premature death.

Disability or mental disorder alone will not be enough to qualify.

To proceed, a patient must make a formal “first declaration”, witnessed by a co-ordinating doctor and another adult, provide proof of identity, and then undergo separate in-person assessments by two different doctors.

Both clinicians must be satisfied that the patient is terminally ill, understands their diagnosis and options, has been offered appropriate palliative and social care, and is acting voluntarily without coercion or pressure, including financial concerns or feeling like a burden.

Mr McArthur says the new Bill is now “bulletproof”. However, crucially, if passed, some of that bulletproofing will be in the hands of Westminster.

That's left some MSPs uncertain.

The Scottish Government said Section 18, which offered “no duty, no detriment” conscience protections for healthcare workers, needed to be removed from the Bill as it was outside Holyrood’s legislative competence.

That means if it passes its final vote on Tuesday, the necessary legal changes will be made through a Section 104 order — UK secondary legislation used to update reserved law.

On Friday, that saw the Royal College of Psychiatrists in Scotland and Royal Pharmaceutical Society in Scotland move from being neutral on the Bill to being opposed.

During the debate, MSPs from all parties warned that a Section 104 order, drafted by the UK Government and unable to be amended by the Scottish Parliament, would receive limited parliamentary scrutiny and accountability.

Jeremy Balfour further warned that MSPs were taking a “massive leap in the dark” by delegating these protections to Westminster.

In a bid to offer reassurance, Mr McArthur introduced a “safety measure” to ensure the law cannot commence until the Section 104 order is passed.

Will that be enough?

Last May, at the stage one vote, 70 MSPs backed the general principles while 56 voted against, which means if eight switch on Tuesday, the Bill will fall.

So far, three of those who voted yes have now said they will vote no.

Russell Findlay and Audrey Nicoll on the justice committee at Holyrood (Image: Getty)

Russell Findlay, leader of the Scottish Conservatives, and SNP MSPs Collette Stevenson and Audrey Nicoll have all withdrawn their support.

That takes the number of switchers needed by opponents of the Bill down to five.

However, there have been other developments since last year.

One of those who supported the legislation was Labour’s Colin Smyth.

The South Scotland MSP was arrested and charged with possessing indecent images of children and voyeurism last August.

Mr Smyth, who denies all the charges, was subsequently suspended by Labour and his Holyrood pass was revoked. Although he can vote, he is not thought likely to do so.

That cuts the number to four.

The much-missed SNP MSP Christina McKelvie died in March last year. On June 5, three weeks after the stage one vote, her Hamilton, Larkhall and Stonehouse constituency was won by Labour’s Davy Russell.

He told The Herald on Sunday he will be voting no on Tuesday.

“If quality palliative care was available at the point of need to all, I do not think the Bill would be here,” he said.

That means if only three MSPs change their mind, the legislation will fall.

There are a number who are wavering. One told The Herald on Sunday they were “still taking stock of it”.

“I need some headspace to weigh it up,” they said.

“I will need the weekend to clear my head and properly get to grips with everything that has happened,” said another after Friday’s debate. “It has been some week.”

There is no shortage of pressure.

"It’s in the hands of half a dozen or so MSPs in the middle," said one source close to the proposals. "We’ve put the most heavily safeguarded bill in the world on the table. Now they need to follow their consciences."