:

09:41

Our next item of business is stage 3 proceedings on the Assisted Dying for Terminally Ill Adults (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2—that is, Scottish Parliament bill 46A—the marshalled list and the groupings of amendments. The Division bell will sound and proceedings will be suspended for around five minutes for the first division of the stage 3 today. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on any group of amendments should press their request-to-speak button or enter RTS in the chat as soon as possible after the group is called.

Members should now refer to the marshalled list of amendments.

Section 21A—Offence of advertising assisted dying

Group 16 is on the offence of advertising and the dissemination of information. Amendment 247, in the name of Murdo Fraser, is grouped with amendments 248, 52 and 71.

Before I talk about Amendment 247, I draw members’ attention, if they are not already aware of this, to the fact that the Royal College of Psychiatrists in Scotland has just informed us in the past few moments that it has moved from a position of neutrality on the bill to a position of Opposition. I hope that members will reflect on that when they reach a view on how they will vote on the bill in its entirety.

Amendment 247, which is in my name, would introduce a new subsection in section 21A that would create a mandatory requirement for all public-facing communications about assisted dying to include suicide prevention information. Its purpose is to ensure that vulnerable individuals, including those experiencing distress or suicidal thoughts, are provided with clear guidance and access to appropriate crisis support services.

Language is important in this debate. The bill that is before us is called the assisted dying bill, but we know that that language confuses people, because there are people who believe that the term “assisted dying” covers palliative care, the administration of pain relief and anyone’s life in a hospice. In reality, the bill is about assisting suicide. That is the legal reality. It has never been the case in Scots law that assisting someone to end their life has been legal, so the bill will represent a fundamental change in our law. On the two previous occasions when the Parliament has debated similar Bills, those bills have been described as assisted suicide bills. There has been a deliberate change to sanitise the debate that we are having.

09:45

The change reflects another sanitisation. When the well-funded lobby group Dignity in Dying, which is promoting the bill, was formed many years ago, it was called the Euthanasia Society. In the 1970s, it rebranded itself as the Voluntary Euthanasia Society. Two decades ago, it rebranded itself again as Dignity in Dying. However, no one should be in any doubt as to the origins of the campaign group and its true agenda.

Suicide is a difficult subject for anyone to discuss. I know that those who support the bill do not wish to conflate what the bill seeks to do with suicide, but that is unavoidable for the reasons that I have outlined. Suicide is a terrible social curse.

I am finding the language that Murdo Fraser is using deeply offensive, and I say that as someone who will vote against the bill. He should, please, be careful about the language that he uses. Suicide is a very difficult issue to discuss, as he said, but what we are discussing is not suicide.

I gently say to Clare Haughey that the legal reality is that the bill would allow, for the first time in our history, individuals to help another individual to commit suicide.

Let me explain my thinking on the subject. Every suicide is a tragedy. It is an enormous tragedy for the life lost, and it is a huge tragedy for those left behind, who often wonder what more they might have done to prevent the tragic loss of life.

Suicide is the biggest cause of death among young men in Scotland today. It is a huge societal problem. I know that the Government does a lot of work on suicide prevention, but, in my view, we should be doing more—we should be doing everything that we can to prevent suicide.

I talk from personal experience. Many years ago, when I was a much younger man, I lost a dear and close friend to suicide, in circumstances that I find extremely painful to talk about even now. There was no advance warning. We were not aware of any suicidal intent. There was no history of depression or mental illness. There was no indication that that would happen. It came completely out of the blue and was utterly shocking.

I saw the impact that that young man’s suicide had on his family and friends, who were all utterly devastated. That horror remained with them for the rest of their lives. The young man’s mother died just a few years ago, and I had kept in very close contact with her. The horrendous and devastating impact of the young man’s death on her still haunts me.

We must do everything that we can to avoid the prospect of suicide having an impact on anyone’s life. If the bill is passed, I do not want there to be any hint, suggestion or muddling of the messages in relation to suicide prevention, because we would be legislating for suicide in particular circumstances. Amendment 247 would make it clear that we must do more to promote suicide prevention and provide support for those in crisis.

I am reminded of the years and years that it took for campaigners to secure safeguarding warnings attached to advertising on gambling and smoking products, for example. Let us get the bill right at the outset. If assisted dying is going to be advertised, patient information must be available, if it is requested. In my view, that should include signposting to suicide prevention organisations and charities. People must know that there is somewhere else that they can turn to and that all options are open to them if they request assisted dying.

I want the bill to contain every possible safeguard. It must be clear about who, where, why and how. It must include details on everything; it must not leave the details to regulations. As MSPs, we must be confident that we have done everything possible to make the bill as safe as possible.

[Made a request to intervene.]

I am just about to close, so I will not take the Intervention, if Mr Harvie will forgive me.

I want suicide prevention to be absolutely central to what we are doing here, so I would like to see it addressed in the bill.

I will speak briefly to the other amendments in the group. My colleague Stephen Kerr’s Amendment 248 covers similar territory, but goes further than my amendment, in that it seeks to create offences. I am happy to support it if my amendment does not succeed. Liam McArthur’s amendments 52 and 71 would create new offences and penalties and would provide for those to be made in regulations. I would be happy to support them if my amendment does not succeed.

I move amendment 247.

I call Stephen Kerr to speak to Amendment 248 and the other amendments in the group.

I start by thanking Murdo Fraser for his powerful and sobering remarks.

Group 16 addresses an issue that may seem procedural but, as Murdo Fraser has described well, is at the heart of the concerns of many in the chamber who will oppose the bill. Those concerns relate to the way that assisted dying is described, which we have already had an exchange about, and the way that it is communicated to the public. Amendment 248, in my name, proposes a simple safeguard. When assisted dying is referred to publicly under the act, if the bill is passed, reference must also be made to information about suicide prevention and the availability of palliative care. That requirement is important. If the Parliament creates a lawful pathway for assisted dying, it will inevitably shape the wider conversation about suffering, death and the choices that people believe would be open to them. The way that information is presented will matter, particularly for those who may already feel vulnerable, isolated or overwhelmed. My amendment seeks to ensure that assisted dying is never presented in isolation from the care and support that should surround people. If someone encounters information about assisted dying, they should also encounter information about suicide prevention. They should know that help and Intervention exist and that society has a duty to care for those who may be experiencing despair. Equally, they should encounter clear information about palliative care.

Many people do not realise how far palliative care has advanced or how effectively suffering can often be managed. That care should never sit quietly in the background while assisted dying becomes the focus of attention. If the law is to allow assistance in dying, we must ensure that help to live is never hidden from view. My colleague Murdo Fraser has already raised many important points about the need to ensure that people who request assisted dying are provided with information about suicide prevention. I agree with that approach. Amendment 248 would apply the same principle to the way in which the law would be communicated publicly.

I want to be clear with colleagues that I remain opposed to the bill. I do not believe that a law of this nature can ever be made entirely safe. However, if the Parliament proceeds, we must at least be honest about what we are discussing. The bill would permit doctors to assist individuals to end their lives, and that reality cannot be separated from the broader questions surrounding suicide prevention and support for those who are experiencing profound distress.

International experts have made similar points. The International Association for Suicide Prevention has stated that suicide involves intentionally carrying out an act to end one’s life and has warned that there can be an overlap between suicide, euthanasia and assisted dying. It has also emphasised that anyone who is considering ending their life should have access to high-quality suicide prevention support and intervention. We should listen to that advice. Amendment 248 seeks to ensure that the information that is communicated on the act, if the bill is passed, would reflect the responsibility that we have to make it safe. It would ensure that assisted dying is never presented without reference to prevention, support and care.

I am about to close, but I am happy to give way to Rona Mackay.

Is the member aware that people who are refused the choice to die with dignity often end up taking their own life anyway? There are multiple instances of that.

I think that Rona Mackay has made the case for my Amendment. It is very important that, when people are presented with options, they are also given assurance that they will have the support, assistance and care that they deserve. That is what lies behind my amendment 248. With legislation that deals with matters that are as serious as life and death, the balance that I am proposing in the amendment is not unreasonable. It proposes a safeguard that we should insist on.

I call Liam McArthur to speak to Amendment 52 and other amendments in the group.

I begin in customary fashion by reminding members of my entry in the register of members’ interests in relation to the support that I receive from three separate campaign organisations in the context of the bill. I also reflect that there might be other members who have participated in the debate who should declare similar interests.

An offence of advertising assisted dying was introduced at stage 2. I entirely support the creation of such an offence but I have also reflected on the Scottish Government’s commentary that the offence in the bill does not refer to intent or effect and contains multiple inconsistencies in definitions and exceptions.

On that basis, my amendments 52 and 71 introduce regulation-making powers for ministers to create an offence of advertising assisted dying and related penalties, an approach that was also taken in the Terminally Ill Adults (End of Life) Bill at Westminster. That would ensure that the offence is specific and effective in capturing those that it is intended to capture. Such regulations would also be subject to the affirmative procedure, which would allow the Parliament to scrutinise them properly.

Murdo Fraser’s Amendment 247 and Stephen Kerr’s 248 both seem to require that any lawful communication about assisted dying must refer to, among other things, suicide prevention information. I strongly echo the comments on that from the convener of the Health, Social Care and Sport Committee, Clare Haughey. I also refer to the statement issued by suicide prevention leaders in Australia, which specifically cautions against conflating suicide prevention and assisted dying in public communication. The statement says:

“Suicide prevention and”

voluntary assisted dying

“should be discussed separately. Confusing these terms can delay access to suicide prevention services for people in distress, and complicate or delay care for people with terminal illness who are seeking an additional choice at the end of life.

“In any public communication, it is important that we refrain from talking about”

assisted dying

“as suicide or using language that associates the two.”

For that reason, I do not support amendments 247 and 248 and urge the Parliament strongly to oppose them.

I begin with a statement that I put on the record when we were discussing last night’s last group: I absolutely appreciate the sensitivities of the subject. I have absolute sympathy with Murdo Fraser. He has my deepest sympathy for the case that he puts on the record. However, I also ask members to be careful not to conflate suicide and assisted death. I point to the Scottish Government’s suicide prevention strategy, which sets out our vision to reduce suicide deaths in Scotland.

We should recognise the fact that the United Nations has said that our suicide prevention strategy is world leading. I hope that members will not try to conflate the two issues but that seems to be what is happening. I want to ensure, as I am sure the Cabinet secretary does, that our suicide prevention strategy remains the best that it can be. Some of this debate is not in any way helpful and will be causing a lot of pain outside the Parliament.

I note the points that Mr Stewart made. I understand the sensitivities and the very strong views that there are on the matter. I rest on the points that I opened with, which I hope reassures him.

I begin my substantive discussion of the amendments in the group with Amendment 247, which would place a significant onus—and, possibly, cost burden—on anyone who produces materials about assisted dying for members of the public to provide information on which they might not have the required expertise.

The Scottish Government has significant concerns about amendment 248. From a legal perspective, the provision would create an offence in relation to the way in which assisted dying was referred to in public communication over and above the offence that is already in the bill. It has potentially very wide reach, as the communication that is intended for members of the public would only have to refer to assisted dying. It is questionable whether that is a proportionate measure.

From a technical perspective, it is not clear how amendment 248 would interact with the exemptions that are set out in section 21A(4).

From a delivery perspective, like amendment 247, amendment 248 would place a significant onus on anyone producing materials around assisted dying for the general public to provide the information as set out in the amendment, on which they may not have the required expertise. It could place a significant cost burden on the production of information for the general public around assisted dying.

The Scottish Government has no comment on the remaining amendments in the group.

10:00

I call Murdo Fraser to wind up and to press or withdraw Amendment 247.

: I will respond very briefly. I appreciate that there are members who find it uncomfortable to talk about suicide in the context of this bill, but that is the reality of what we are facing. That is the practical impact of the bill before us. For the first time in our history, we would be legalising the assistance of somebody who was taking their own life.

This is an extremely sensitive subject for everyone. For Mr Fraser to use some of the language that he has used and to conflate two very different things is not befitting of the debate that we have had throughout our stage 3 consideration. It could be upsetting to people in the chamber and outside of it. Mr Fraser should know better; he should take a look at what he has said and maybe retract some of it and tone down the language a bit.

I say very gently to Mr Adam that that Intervention is not worthy of him. We are dealing with a legal reality and a groundbreaking change in the law that will have a huge impact. All that I am seeking to do is to ensure that we put suicide prevention at the heart of the bill.

For that reason, I press Amendment 247.

The question is, that Amendment 247 be agreed to. Are we agreed?

Members: No.

There will be a Division.

As this is the first division of today’s stage 3 proceedings, I suspend the meeting for around five minutes to allow members to access the digital voting system.

10:01

Meeting suspended.

10:06

On resuming—

We come to the Division on Amendment 247. Members should cast their votes now.

The result of the Division is: For 40, Against 74, Abstentions 4.

Amendment 247 disagreed to.

Amendment 248 moved—[Stephen Kerr].

The question is, that Amendment 248 be agreed to. Are we agreed?

Members: No.

There will be a Division.

The result of the Division is: For 39, Against 75, Abstentions 5.

Amendment 248 disagreed to.

Section 22—Limitations on effect of Act

We move to group 17, which is on limitations on the effect of the act. Amendment 249, in the name of Stephen Kerr, is grouped with amendment 113. I call Stephen Kerr to move amendment 249 and to speak to both amendments in the group.

Group 17 takes us to the constitutional question that sits at the foundation of the bill, which is whether the provisions before us can operate within the powers that this Parliament possesses. Amendment 249 seeks to make that boundary clear. It would broaden section 22 so that it would apply to all reserved matters under the Scotland Act 1998, and not only to particular areas such as drugs, poisons or aspects of medical regulation. Its effect would be simple: if any provision of the act conflicts with a matter that remains reserved to the United Kingdom Parliament, that provision would have no legal effect in Scotland.

Amendment 249 is not an attempt to frustrate the bill—

Can Stephen Kerr elicit which parts of the bill, as amended to date, relate to reserved matters? My understanding is that those have all been removed from the bill. If he could point to some such parts of the bill, I would be grateful.

I accept what Jamie Greene is saying. I am speaking to Amendment 249. Neil Gray’s amendment 113 is in a similar vein. Both amendments in this group say the same thing.

My amendment is not an attempt to frustrate the bill; it is an attempt to ensure that the bill that we pass is capable of operating within the constitutional limits—the competence—of this Parliament. Throughout the scrutiny of the bill, there has been considerable discussion about the issue of competence. Those concerns are not academic; they go directly to whether parts of the bill could operate lawfully once enacted. That relates to some of the decisions that the Parliament has made in the course of our consideration of the amendments to the bill at this stage in the process.

We have heard repeatedly that areas such as employment law, professional regulation and other UK-wide frameworks remain reserved matters. If provisions of the bill reach into those areas—as they did, before we began the amendment process—they cannot take effect simply because this Parliament wishes them to.

I have a very straightforward question. Does Stephen Kerr agree that the Cabinet secretary’s Amendment 113 would achieve what he is seeking to achieve in a much more straightforward manner?

I am sticking with my Amendment. I thank Jamie Hepburn for the invitation to “do a Daniel Johnson”, as I think that we will now call it, but my amendment is equally clear. Neil Gray is conveying his opinion through his facial expressions; I am sure that we will hear from him shortly. I lodge my amendments on the basis of what I can see has been put on the daily list. On that basis, I was trying to be helpful.

I appreciate the importance of the issue that Stephen Kerr is raising about not having a bill that would in some way be ultra vires in its operation. However, aside from the point that Mr Hepburn made, does Stephen Kerr not feel that the Scotland Act 1998 would preclude most of the problems that he is anticipating?

I am sorry, but I do not quite follow what Dr Allan is saying, because that is why I lodged my Amendment, and that is also why Neil Gray lodged his amendment 113. It would seem that there is some accord, at least between Neil Gray and I, in respect of the need for such an amendment. That is why I lodged my amendment; I did not have sight of the Cabinet secretary’s amendment.

My amendment 249 seeks to provide the clarity that Dr Allan referred to. It would ensure that the limits of devolved competence remained explicit in the bill and that no provision could override the constitutional framework established by the Scotland Act 1998. I think that we all accept that and, for legislation that deals with matters of life and death, that clarity is not optional—it is essential. That is why I will stand by my amendment.

I move amendment 249.

10:15

The substantive difference between my Amendment and Mr Kerr’s is that mine would remove section 22 and Mr Kerr’s would amend it. I will speak to my amendment before I speak more substantively to his.

My amendment would remove section 22, which is entitled “Limitations on effect of Act”, from the bill. The explanatory notes and policy memorandum that accompanied the bill on its introduction referred to the likely need for Scotland Act 1998 orders to achieve a comprehensive assisted dying scheme. In particular, reference was made to the J4 medicines reservation in the 1998 act. Given that a section 30 order has been agreed by the Parliament and made by the Privy Council, and that work is in progress on a section 104 order, it would seem that the section 22 provisions are no longer necessary.

I have no further comment to make on Mr Kerr’s amendment, other than to restate our view that section 22 of the bill should be removed via my amendment.

I thank Stephen Kerr and the Cabinet secretary for setting out their positions.

Section 22 of the bill was included in the initial drafting to make it clear that any provisions touching on reserved matters would have no effect. I thank the cabinet secretary for the productive work that has been undertaken with the UK Government on advancing a section 30 order in record time and for the constructive engagement that has taken place on the use of section 104 orders to allow remaining matters of legislative competence to be dealt with.

I note at this stage the amendments in my name and in the name of Ross Greer, which I think will give further reassurance to the Parliament.

I therefore support the cabinet secretary’s Amendment 113, on the removal of section 22, which is now redundant as a consequence of those positive steps, and I urge Parliament to do likewise. For that reason, I will not support Stephen Kerr’s amendment 249, which seeks to amend section 22.

I call Stephen Kerr to wind up and to press or withdraw Amendment 249.

I have no further comments to add to the short exchange that we have had on the issue. I press my Amendment.

The question is, that Amendment 249 be agreed to. Are we agreed?

Members: No.

There will be a Division.

The result of the vote is: For 30, Against 78, Abstentions 9.

Amendment 249 disagreed to.

After section 22

Amendment 113 moved—[Neil Gray]—and agreed to.

Amendment 250 not moved.

Section 22A—Assessment of likely impact of Act on palliative and end of life care services

Amendment 251 moved—[Audrey Nicoll].

The question is, that Amendment 251 be agreed to. Are we agreed?

Members: No.

There will be a Division.

The result of the Division is: For 84, Against 31, Abstentions 3.

Amendment 251 agreed to.

Amendment 252 moved—[Douglas Ross].

The question is, that Amendment 252 be agreed to. Are we agreed?

Members: No.

There will be a Division.

The result of the Division is: For 64, Against 50, Abstentions 2.

Amendment 252 agreed to.

Amendment 253 moved—[Audrey Nicoll].

The question is, that Amendment 253 be agreed to. Are we agreed?

Members: No.

There will be a Division.

The vote is closed.

On a point of order, Presiding Officer. I would have voted yes.

Thank you, Ms Dunbar. We will ensure that that is recorded.

The result of the Division is: For 102, Against 16, Abstentions 1.

Amendment 253 agreed to.

Amendment 254 moved—[Audrey Nicoll].

The question is, that Amendment 254 be agreed to. Are we agreed?

Members: No.

There will be a Division.

The result of the Division is: For 95, Against 23, Abstentions 2.

Amendment 254 agreed to.

After section 22A

Amendment 255 moved—[Michael Marra].

The question is, that Amendment 255 be agreed to. Are we agreed?

Members: No.

There will be a Division.

The vote is closed.

On a point of order, Presiding Officer. My app would not work. I would have voted no.

Thank you, Ms Wishart. We will ensure that that is recorded.

The result of the Division is: For 53, Against 63, Abstentions 3.

Amendment 255 disagreed to.

Section 22B

Group 18 is on the code of practice. Amendment 256, in the name of Douglas Ross, is grouped with amendments 257, 53, 258, 129 and 132.

I am pleased to speak to the amendments in my name, and I am grateful to Stephen Kerr for covering for me yesterday.

Amendment 256 seeks to preserve palliative and end-of-life care by ensuring that statutory and charitable funding that is intended for such care is not rerouted to fund assisted suicide instead. It would be so very wrong—to be frank, it would be indefensible—to divert money that is intended to improve lives to fund people taking their own. Incorporating an assisted dying service into the national health service will inevitably mean that such a service will compete with other services for funding.

I followed the whole of yesterday’s proceedings, and I recall my colleague Edward Mountain intervening on the Cabinet Secretary for Health and Social Care to ask about the funding. He made reference to the letter that Neil Gray sent to the Health, Social Care and Sport Committee on 26 February. Some of the comments that the health secretary made in that letter bear repeating. He said that

“There remain many uncertainties as to the overall costs of the Bill”

and that

“the Scottish Government does not agree … that the Bill will have minimal cost implications.”

The money will have to come from somewhere, and we do not know how much will be needed or where it will come from. We cannot allow the palliative care service to be in any way affected by the bill.

I understand the argument that the cabinet secretary made in response to Edward Mountain yesterday about it not being a Government bill, meaning that the Government cannot cost it in the way that it normally would. However, the Government is clearly at odds with the member in charge of the bill and his financial memorandum—that was laid out very clearly in its letter to the lead committee.

It is absolutely crucial that we safeguard the money that is currently dedicated to palliative and end-of-life services. I am not certain that that would be done under the bill as drafted. The member in charge of the bill, Liam McArthur, claimed at stage 2 that

“no evidence has been seen of a deterioration in the delivery of palliative and hospice care”—[Official Report, 25 November 2025; c 35.]

in jurisdictions that have legalised assisted suicide. However, in jurisdictions that have gone down that route, when we look at what they promised and what has actually been delivered, the picture is very different.

When New South Wales legislated for assisted suicide, it committed to increasing palliative care spending by 743 million Australian dollars over a five-year period, but, only a year later, that spending was slashed by 249 million Australian dollars. Canada promised 6 billion Canadian dollars over 10 years for palliative and home care when medical assistance in dying was legalised. Five years in, less than 200 million Canadian dollars has gone to palliative care.

10:30

An analysis from Marie Curie that was published last month revealed the desperate state of palliative care in this country. I have the report in front of me, and we referenced it during day 1 of the stage 3 proceedings. When I spoke to my first amendment, there were questions from Emma Roddick, Ross Greer and the Deputy First Minister, who intervened on me. I said that we would come back to the point in group 18 because it has to be highlighted.

That new research is so stark that it cannot be ignored. Based on the methodology that was used, the report shows that, each year, one in three people who die in Scotland have unmet palliative care needs. That means that, every year, 18,500 Scots die without access to the compassionate and high-quality care that they deserve. None of us can think that that is acceptable, and we all have to agree that it is a national disgrace. That is why it is important to include amendment 256, should the bill be passed.

The other amendments in the group are self-explanatory. I will allow John Mason to speak to his amendment 257 and Jackie Baillie to the remainder of the amendments in the group. If need be, I will come back to them in summing up. It is important to raise the points that I have made in relation to amendment 256, and I hope that they will encourage members to support the amendment.

I move amendment 256.

I am happy to support Douglas Ross’s Amendment 256.

Amendment 257 would introduce an institutional opt-out, which is an essential safeguard to ensure that no hospice, palliative care provider or other health or social care organisation is forced to participate in or facilitate assisted dying or assisted suicide, depending on which term members prefer. The amendment recognises that there are organisations for which providing assisted dying would violate their founding ethos and the religious or ethical values on which their care is based. My amendment would also ensure that hospices and care homes that choose not to participate would not suffer any detriment as a result, including regulatory sanction or loss of Government funding.

In jurisdictions that have legalised assisted dying, we have seen why that protection matters. In Switzerland, the Salvation Army was threatened with defunding for not allowing assisted dying on its premises. In Canada, the Irene Thomas hospice was forced to close after losing 1.5 million Canadian dollars in funding for refusing to offer assisted dying. Hospice UK has warned that palliative care doctors could be forced out of the hospice sector if they are unable to distance themselves from assisted dying that takes place in their workplaces. In fact, seven in 10 palliative care doctors say that they would consider resigning if their organisation were to offer assisted dying. We must protect the organisations that those doctors work for. Whatever we think about assisted dying, can we really risk forcing a significant number of our most skilled palliative care specialists out of the sector?

Most hospices are small and intimate settings. Requiring them to permit assisted dying on their premises not only would affect staff but could have a profound effect on patients, many of whom would not want to live in a place where assisted dying was being carried out yet could find themselves next to a room in which someone was taking lethal drugs. For vulnerable people, that could be a terrifying experience. I am not yet a vulnerable person, but I would not want to be forced to witness the person in the next room taking their own life.

It would be deeply alarming if we were asked to vote for a bill that was stripped of its conscience provisions and expected to put our full trust in Westminster to make that right.

Our hospice and care sectors are already facing major challenges in that they are short of funds, have recruitment challenges and are struggling to meet our country’s growing care needs. Without including an institutional opt-out, we risk forcing care homes and hospices to choose between their conscience and their continued existence, potentially decimating the whole sector.

Amendments 258, 129 and 132 form a small package of amendments that seek to strengthen section 22B. That section, which was introduced at stage 2, requires the creation of a code of practice for how assisted dying will interact with hospice and other palliative care services, and these technical amendments aim to ensure that the code of practice will have maximum effect in mitigating any potential negative impacts of assisted dying on existing providers of palliative and end-of-life care.

Amendment 258 would ensure that the code of practice was followed by all relevant public bodies, such as health boards, integration joint boards and Health Improvement Scotland. [Interruption.] I am sorry—I have just had a bit of a technical problem.

Amendment 129 would allow ministers to specify in regulations which public bodies must have due regard to the code of practice.

Amendment 132 would ensure that section 22B came into force after royal assent, to give effect to the aim, set out at the start of the section, that the code of practice should be prepared as soon as possible after the assessment report has been published.

Amendment 53 contains a technical correction of the cross-reference in section 22B(3).

As we all know, and as we have heard from previous speakers, hospice and palliative care services are already under significant and growing pressure. If assisted dying is legalised, we must protect those services and the essential palliative care that they provide to the thousands of people in Scotland who rely on them each year. This package of amendments would strengthen section 22B, and it would help to mitigate potential impacts and ensure that assisted dying was not introduced at the expense of existing vital hospice and palliative care services.

I will leave it there, Presiding Officer. I trust that colleagues will support amendments 258, 129, 132 and 53, in my name, on behalf of Hospice UK.

Amendment 256 would seem to interfere with integration joint boards’ responsibilities under the Public Bodies (Joint Working) (Scotland) Act 2014 to plan and resource adult palliative care services for their area, including hospice services, on the basis of local need.

On amendment 257, there might be an inconsistency in the requirement to have procedures for patient access, given that amendment 231 seeks to provide that organisations must not be required to make referrals. As I said in relation to group 3, it is also not clear how an organisation would demonstrate conscientious objection, which is about personal beliefs.

With regard to amendment 53, we are happy to work with Jackie Baillie to make the technical correction that she has highlighted and amend an incorrect cross-reference in section 22B(3), so that the function of preparing the code of practice is correctly linked to subsection (1).

As for the remaining amendments in this group, the Scottish Government has no comment.

I do not support Douglas Ross’s Amendment 256, which seeks to amend the provisions in section 22B on the differentiation of funding streams to require that statutory resources and charitable funding not be directed towards assisted dying. I believe that the bill as it stands covers the concerns that have been raised about the importance of properly funding both palliative care and assisted dying services. As such, the amendment is not needed.

I also observe that the amendment in Douglas Ross's name that we agreed to in the previous group—that is, amendment 252—would expand some of the reporting requirements.

I wonder whether the member sees the problems that many of us have with regard to money for palliative care being moved aside if this bill is passed. That is deeply difficult for many of us to understand. Not having proper palliative care would, I feel, be a form of coercion with regard to assisted dying.

I say to Mr Mountain that, as I have been clear throughout this process, it is not a question of either/or. We need to invest in good palliative care to improve access to it where it does not exist and to improve the palliative care itself where that might be needed. However, we also need the choice of assisted dying for those who are dying horrendous deaths, often beyond the reach of good palliative care.

As the Health and Social Care Committee of the House of Commons concluded after an extensive inquiry over 14 months, in those other jurisdictions that brought in assisted dying, there was not only additional investment in palliative care—of course, that is a decision for Parliaments, and each political party going into the election will have options regarding the prospectus that it puts before the electorate—but also improved engagement with palliative care services, which was driven by the fact that the conversations that are required through that process open up a better understanding of what the palliative care choices might be in relation to each individual case.

I appreciate the concerns of colleagues about this section. The bill says that the code of practice must make provision about

“how existing and future statutory funding streams intended to support the delivery of palliative and end of life care services can be differentiated to ensure assistance provided in accordance with this Act is not funded at the expense of existing palliative and end of life care services”

—I am sorry for speedreading that, Presiding Officer. The point that I want to make to Mr McArthur is that, although the money that flows through integration joint boards might be statutory funding, it is not ring fenced for palliative care. Decisions on prioritisation are made daily, weekly and monthly, so we need something in the bill that recognises that—I acknowledge that Jackie Baillie’s Amendment might bring in as yet unknown provisions. Something has to give, because that is not how palliative care funding works.

That is a helpful Intervention from Bob Doris. However, for the reasons that the Cabinet secretary set out about the way in which Amendment 256 interferes with the responsibilities of integration joint boards, I do not believe that it represents the correct approach. That is not to say that I do not accept that steps need to be taken, but other amendments in the group address the issue more effectively.

Does Liam McArthur agree that this parliamentary session has seen the biggest uplift for palliative care funding since the time of the Assisted Suicide (Scotland) Bill in 2015 and that your bill has put palliative care back on the agenda in a way that has not been the case in more than a decade?

Always speak through the chair.

I thank Ms Dunbar for that comment. It is absolutely irrefutable that the debate around the bill has opened up a conversation about palliative and other end-of-life choices that simply was not happening prior to this session. That is a good thing. Irrespective of whatever happens to the bill and of members’ positions on it, it is agreed across the chamber that it is a positive thing.

I want to come back to Liam McArthur’s Opposition to my Amendment 256. Does he accept the constructive criticism from the Government, in its letter to the lead committee, about the deficiencies in the financial memorandum? Although the Government accepts that it is a difficult thing to calculate, it is very clear that it disagrees with the member on the costings of the bill and the impact that it will have on current resources in the health budget. Is it not important for everyone—supporters and opponents of the bill—to have as many safeguards as possible around an area that, as we have heard from Jackie Dunbar, is as crucial as palliative care?

I agree with the substantive point that Mr Ross has made. We need as much clarity as we can. The bill, as amended, is not yet clear, so its financial implications will have to be determined once we see what the final bill looks like.

We are talking about patients who are already in our health and care system. The numbers are likely to be very limited in the early years—indeed, that is the trend that we see consistently across jurisdictions that have introduced a choice of this nature. As I said, it will be up to political parties going into the election whether they see it as a priority in which they wish to invest.

Jackie Dunbar has mentioned some of the uplift that we have seen in funding for palliative care. I accept that that has been for a particular purpose. However, as a result of the debate that we are having on the bill, we are having a debate about palliative and other end-of-life care options that was not happening prior to the introduction of the bill.

10:45

I do not support John Mason’s Amendment 257, which relates to his earlier amendment on organisational opt-out, to which I am opposed, because it would interfere with matters that were previously debated relating to the on-going section 104 order process.

I support Jackie Baillie’s amendments 258 and 129, which would require public authorities to have due regard to the code of practice, and her amendment 132, which would provide for section 22B to be commenced the day after royal assent. I hope that that offers some reassurance to Bob Doris and others with similar concerns.

I worked with Jackie Baillie on amendment 53, which is a technical amendment, and I thank her for lodging it.

I call Douglas Ross to wind up the debate and to press or withdraw Amendment 256.

This debate has been helpful. I will start with the areas of agreement. I absolutely agree with Liam McArthur that those in favour of the bill and those against it can unite on the need for improved palliative care. It is quite disappointing that it has taken such a bill to get that unanimity across the Parliament. Individuals such as my colleague Miles Briggs have worked on the issue for a long time, but we are still nowhere close to where we should be.

I accept Jackie Dunbar’s point that there has been an increase in funding, but I go back to the Marie Curie report that sets out that one in three Scots is dying without the level of care that they deserve at the end of their life—18,500 of our fellow Scots are not getting the care that they should get when they need it. Although the increase in funding is welcome, it is nowhere near enough, which is why I and members who support my Amendment 256 are determined to protect such funding, should the bill be successful.

Bob Doris made the very good point that integration joint boards are not constrained in how they spend their money. We cannot protect such funding by ring fencing it. We must ensure that the bill, if it is passed, does not result in money that has been donated or otherwise provided for palliative care not being spent on palliative care.

I am glad that we have agreement on that point. I am conscious that Jackie Baillie’s amendments were sponsored by Hospice UK, which thinks that their provisions might square the circle, with public bodies having to take proper and due account of the code of practice. Given that there are some concerns about Mr Ross’s Amendment 256, despite my sympathies for it, might Jackie Baillie’s amendments be an appropriate way to take the matter forward?

I will be supporting Jackie Baillie’s amendments, but I believe that my Amendment 256 is a perfectly acceptable one. I listened to the Cabinet secretary’s concerns relating to IJBs, but I do not share them. We have come to different conclusions on the issue. Members will have the chance to vote for my amendment or Jackie Baillie’s amendments—or, indeed, they could vote for both, and we can see how things end up in the bill.

We need to take a bit of time on this matter. We have had a long debate—we are now into the 21st hour of the debate on the stage 3 amendments. Palliative care and hospice care have been mentioned previously, and it is right for parliamentarians to ensure that, should the bill be passed, we have done everything that we can to protect this crucial area of funding.

On John Mason’s amendment 257, his contribution about conscientious objections reminded me of the point that Keith Brown made last night during the debate on Mr McMillan’s amendment. He said that a constituent had said to him that, if the bill were passed, she would give up her job as a GP, because, with reference to their Hippocratic oath, she does not want to be associated in any way with legislation that would allow people to take away someone’s life. We must do everything that we can to strengthen the opportunity for people to conscientiously object, particularly given that much of what was originally in the bill in that area has now been stripped out of it.

As we heard from Jackie Baillie, her amendments are largely technical and are presented on behalf of Hospice UK. I am very happy to support them.

I press amendment 256.

The question is, that Amendment 256 be agreed to. Are we agreed?

Members: No.

There will be a Division.

The vote is closed.

On a point of order, Presiding Officer. My app would not connect. I would have voted no.

Thank you, Ms Todd. Your vote will be recorded.

The result of the Division is: For 52, Against 62, Abstentions 4.

Amendment 256 disagreed to.

Amendment 257 moved—[John Mason].

The question is, that Amendment 257 be agreed to. Are we agreed?

Members: No.

There will be a Division.

The result of the Division is: For 41, Against 70, Abstentions 8.

Amendment 257 disagreed to.

Amendment 53 moved—[Jackie Baillie] and agreed to.

Amendment 258 moved—[Jackie Baillie] and agreed to.

Section 23—Guidance

We come to group 19, on guidance. Amendment 259, in the name of Ross Greer, is grouped with amendments 54, 260, 261, 55, 262 to 264, 56 and 265 to 274.

I point out that, if amendment 56 is agreed to, I cannot call amendment 265, due to pre-emption.

I will begin with a brief announcement about information technology, because my laptop has just informed me that it is going to force a restart in two hours and 40 minutes, at which point we will be locked into what I am sure will be a long series of votes. If any other members are in a similar situation, we should probably do those restarts pre-emptively during our lunch break to avoid finding ourselves unable to vote.

I do not intend to speak to all the amendments in the group, as this is where members can help me to complete the jigsaw that we started yesterday in the group dealing with advocacy services. I proposed at that point that we move any detail about the services that advocates should provide out of the bill itself and into guidance, but that the bill should state what that guidance should include. That is a nuanced point, but it is important in ensuring flexibility. Members agreed to Amendment 204 last night, which means that we have taken those details out of section 14A and now need to put them somewhere else—in section 23. For that reason, I ask members to support amendment 259.

My other amendment in the group covers a separate matter. Amendment 270 would require that anyone who is “involved in the process” of assisted dying, and not just the person carrying out the functions under the act, should have regard to the guidance.

It is probably best to use a couple of examples to show what I mean by that. We can think of the hospital orderly whose job it is to escort people between different departments of a hospital, or of the general practitioner’s receptionist, who might be the first person that a patient speaks to. People who are in that situation often have personal conversations with the patient. We know that that should not happen, but it sometimes does. People make comments, such as asking the patient how much pressure the situation is putting on their family. Those things should not happen, but we know that they do.

If the bill passes, it is particularly important for there to be relevant guidance for individuals performing those roles that are connected—but not core—to the function of the assisted dying system. Obviously, individuals in that situation would require guidance with a far lighter touch than that for medical practitioners, but, if we introduce the system, it will be useful to provide them with the steer that they will have a role to play in making sure that no patient feels any form of pressure or coercion.

I have a note from the Mental Welfare Commission, which found that strategies for monitoring and reviewing existing independent advocacy services are “variable”. The bill is quiet on how that system would be monitored and reviewed, so is the member confident that independent advocates would do their job and do what he intends with his amendments, without steering into pressuring patients or promoting assisted dying?

That Intervention straddles a couple of points and it takes me on to what I was about to get on to. I do not want to pre-empt Liz Smith’s amendments 268 and 269, because I am undecided on how to vote on them, but I am particularly interested in them because of the accountability and the power that they would give Parliament in that regard. The guidance would be produced by the Government. Liz Smith proposes that it could be used only as a result of a resolution of the Parliament, which would give us a route for accountability. As part of the five-year review process, there would be an opportunity to do that.

Yesterday, we agreed to amendments that would change the way in which the advocacy service would be provided, to give the Government mechanisms to ensure that those providing the service provided it in line with what would essentially become their contractual obligations. There is a wider need for on-going review and scrutiny. I do not want to pre-empt what Liz Smith is going to talk about, primarily because I have not yet decided on how to vote, but I am particularly interested in what she is proposing, because I think that it would provide that accountability and scrutiny mechanism that gets at what Emma Roddick is suggesting.

Briefly, to reassure supporters of the bill, Amendment 270 is not intended to provide anything that would be unworkable or particularly onerous. On that, I point to the fact that Dignity in Dying supports amendment 270. It is unusual for us to be in a position in which we could potentially have guidance that requires a resolution of Parliament, but this bill places us in a very unusual position because of the complicated issues of legislative competence. If it passes on Tuesday, key details of that would be filled in by the UK Government via section 30 and section 104 orders. It is unclear what, if any, role Parliament would have in that, other than the final veto that we could wield through the commencement regulations.

I have a couple of questions for Liz Smith, so I think that it would be best to ask them now, ahead of her speech, rather than to intervene later and break her flow. My questions are about how her proposed system would operate. Would the resolution be required just for the first edition of the guidance? Would it be required for any subsequent editions or even for any small revisions that were made in between those five-year periods? I want to make sure that it would be quite easy for us to keep the guidance up to date. I am inclined to support that if it would be required in the first instance and even through those five-year review periods, but if we needed to change a single line in the guidance document and it had to come back for a resolution of Parliament, I would be a bit worried about whether that was onerous. I would be grateful if Liz Smith could clarify how she believes that that system would operate. On that point, I will close and ask members to support amendments 259 and 270.

I move amendment 259.

Much of the debate over the past few days has revolved around the identification and consideration of indirect pressures, which may affect the decision-making ability of a person seeking assistance to end their life. Debate on the skill set that clinicians currently have and the challenges involved in identifying and taking account of such pressures have also been discussed. I thank Parliament for supporting my Amendment 27 and consequential amendments 160 and 33, which will bring in the requirement to ask and discuss indirect pressures with the person applying for an assisted death.

Amendment 54 would require guidance to be produced on the identification and consideration of indirect pressures, which may affect the decision-making ability of a person seeking assistance to end their own life. That is important. Identifying indirect pressure can be complex and nuanced and, beyond that, judgments about whether such pressure is undue add a further level of complexity. Practitioners will want support and guidance on how to make those life-and-death assessments and judgments. Having guidance will also support a greater degree of consistency, while recognising that every individual and every set of circumstances will be different and unique.

11:00

Of course, existing guidance from professional bodies in the UK does not cover assisted dying scenarios but is more general in nature. If the bill becomes law, they are likely to update their guidance, and my amendment 33 would require practitioners to have regard to the guidance from those professional bodies. I tried to address that at stage 2, but I think that requiring practitioners to have regard to that guidance, which could be updated from time to time, is a much more effective way of doing it. When the professional bodies update the guidance, they will look at the act to understand the parameters that they are working within. That is why it is essential that indirect pressure is addressed in the bill, and not just coercion by a person.

The Scottish Government states that careful development of guidance would be required to avoid creating expectations that all forms of indirect pressure can be identified or mitigated in a uniform way. However, it is surely the case that all guidance must be carefully developed in all circumstances at all times. Also, I have no expectation that all forms of indirect pressure can be identified and mitigated. That is one of the issues that I have with the bill, but I am trying to build in safeguards where I can. If we pass assisted dying legislation, we must make every effort to ensure that it contains as robust a system of safeguards as possible, imperfect as that may be. Amendment 54 seeks to do that.

Amendment 55 would require the Scottish Government to produce guidance on how concerns about an assisted dying case may be raised and dealt with. It is inevitable that, at some stage, a family member or other person will want to raise a concern about some aspect of the process and practice that is set out in the bill. Currently, however, the bill makes no particular provision for such a scenario. Amendment 55 is deliberately drawn broadly. It does not seek to require a specific process, because it is unclear at this stage which organisations might be involved in delivering assisted dying. Organisations might have their own relevant policies and processes, which might or might not be relevant to my policy intention. The amendment is therefore deliberately not prescriptive. It simply seeks to give the Scottish Government latitude to bring in appropriate processes.

On amendment 262, I welcome Liam McArthur’s support for the eligibility requirement that the terminally ill adult must be reasonably expected to die within six months. However imperfect and challenging in practice that would turn out to be, it helps to make the eligibility requirements less open ended and vague. However, we have heard that clinicians agree that they cannot reliably predict with any substantial degree of accuracy whether someone will die within six months. Given those circumstances, it is reasonable for there to be guidance on how to interpret and apply in practice the eligibility requirement that the terminally ill adult must reasonably be expected to die within six months. The guidance that is provided for in amendment 262 would support a more consistent approach to identifying prognosis and it could be updated regularly to reflect changes and developments in treatments and the science of forecasting.

There is evidence of public confusion between assisted dying and some aspects of existing clinical practice in palliative care. I mentioned that yesterday. Amendment 267 seeks to ensure that any guidance that is produced in connection with the bill, should it become law, will not conflate assisted dying with palliative care. That is an important practical consideration. People who are referred to palliative care need to know that the practice of palliative care does not seek to hasten death and that the focus will be on supporting them to live as well and as comfortably as possible for the full course of their natural life. That is what palliative care seeks to do. Whatever views members of this Parliament hold—there are many nuanced views—we recognise that assisted dying is something very different, and my amendment 267 seeks to recognise that.

I thank Ross Greer for his advice. He managed to make me crash my computer, so I thank him for that as well. Luckily, however, IT staff are on hand.

I hope to use my amendments in the group to create a part of the bill that provides clarification, because members have had concerns throughout the debate about the advice on making someone comfortable and how that will sit in the bill.

Amendments 260 and 265 would require the Lord Advocate to be consulted on the development of statutory guidance on the provision of assistance under section 15. That would include what constitutes lawful assistance under section 15(4A) and distinguishes assistance from administration of the approved substance. I note that Amendment 56 would pre-empt my amendment, but both amendments 56 and 265 seek to tidy up section 23(3A), which makes reference to a subsection that was not added to the bill at stage 2. I therefore urge colleagues to support my amendment 265 over section 56.

I lodged amendments 260 and 265 on behalf of the Royal College of Nursing Scotland to amend section 15. It is important that guidance is clear on exactly what is permitted and what is not permitted and, in particular, what constitutes assistance. That will require a level of clinical input, and it will also require legal input. We need to ensure that the practitioners who are involved in assisted dying are absolutely clear on what is legally permitted and what is not. That is why RCN Scotland is of the view that the Lord Advocate should have a role in developing and approving the statutory guidance governing the provisions around assistance.

Amendment 263 would require the statutory guidance that is produced by the Scottish ministers to include

“how the provision of assistance to terminally ill adults, in accordance with this Act should be arranged by health boards, including the development of patient pathways.”

Again, I lodged the amendment on behalf of RCN Scotland, which is concerned that, if the bill is passed, assisted dying will be part of the standard role for existing staff, such as district nurses, and existing teams will be expected to take on that role, which would not be safe or sustainable for the workforce or for those seeking to access assisted dying.

Amendments 261 and 264 would provide for people carrying out functions under the bill to receive mandatory training, accreditation and on-going three-year refresher and competence training.

The bill covers areas that are literally to do with life and death, and people who are empowered to carry out actions under the bill must be competent to do so. Competence is particularly important when it comes to issues such as identifying coercion. There has been much discussion about that, but it is only recently that the Parliament recognised coercive control as part of domestic abuse. Coercion could be used in encouraging a person towards assisted dying in a domestic abuse situation, but it could also be part of elder abuse. Knowledge and understanding of those issues are evolving and will change. It is therefore important that the knowledge and skills of practitioners are updated regularly.

Updating will also be required in relation to other issues, such as safeguarding people who may not have the mental capacity to make such a decision or who may be vulnerable in other ways, so that practitioners can best support their clients. They must also have knowledge of alternatives to assisted dying in order to be able to properly inform their clients. I am not suggesting that practitioners must know every alternative, but they must know referral pathways to be able to provide the client with the best possible information available. All of the above is subject to change, hence the need for practitioners to have their knowledge and skills updated at regular intervals.

I turn briefly to Amendment 263, in the name of Miles Briggs. My concern is that the development of a patient pathway suggests that a patient would be placed on a pathway once they started to explore assisted dying. Given the enormity of the decision that they are making, alternatives should be fully explored at every stage of the process. I look forward to finding out whether that would happen, because people need to consider their actions as they go through the process.

I call Liam McArthur to speak to Amendment 56 and other amendments in the group.

Amendment 56 is technical. It removes section 23(3)(A), which refers to a subsection in the bill that does not exist as a consequence of the relevant amendment not being agreed to at stage 2.

Miles Briggs’s amendment 265 also seeks to amend section 23(3)(A), to require guidance concerning the provision of assistance to be subject to the Lord Advocate’s approval. I know, as Mr Briggs confirmed, that he has been working closely with the RCN on the amendment. I am not minded to support it, as it seems an irregular approach to take to guidance. I note the Government’s view that it may interfere inappropriately with the Lord Advocate’s role. The Cabinet secretary may comment on that in due course.

I worked with Ross Greer on his amendment 259, and I am happy to support it, as it sensibly seeks to ensure that guidance must include provision about advocacy services.

Bob Doris’s amendment 54 would require that information on identifying “indirect pressures” is included in guidance. Amendment 55 provides that the guidance should include information on

“raising and dealing with concerns in connection with the provision of assistance … both before and after death”.

On amendment 54, I note the Government’s comment that any guidance would require careful development to avoid creating the impression that all forms of indirect pressure can be identified or mitigated in any singular way. That said, I recognise the benefit of the inclusion of such information in guidance, and I am content to support amendments 54 and 55.

Mr Doris’s amendment 262 would add a requirement for guidance to be produced on the interpretation and application of the eligibility criteria in relation to the six-month prognosis. That is very reasonable, and I support amendment 262.

However, I am not convinced that Bob Doris’s amendment 267, which would require that guidance must not describe assisted dying as part of palliative or end-of-life care, is necessary. There is no doubt that the therapeutic conversations, clinical support and other referrals that would be provided as part of the assessment process would form part of the care that can be provided to a dying person who is approaching the end of their life. Terminally ill people have said, time and again, that they want an additional option as part of their end-of-life care, which is what the bill seeks to provide.

I will not seek to debate or labour the point, but I am clear that palliative care is not assisted dying. The Amendment would clarify that. Lots of palliative care practitioners want that to be clarified. I ask Liam McArthur to reflect on that and support the amendment.

I take the point that Bob Doris is making and I have heard that concern expressed. However, I do not think that there is any way of getting around the fact that, were the bill to be passed, assisted dying would be a choice as part of end-of-life care. As I said, I see it as a positive development that there is interaction between palliative and hospice care, for example, in the discussions around assisted dying. That allows for better engagement with palliative care. As I have indicated, in jurisdictions that have introduced such Laws, there is considerable evidence of that. I have always been clear that it is not a case of either/or when it comes to palliative care and assisted dying. Both will need to exist alongside each other, providing compassionate care and choice to terminally ill people at the end of life. Assisted dying is absolutely a form of end-of-life care, and in my view it would be inappropriate to seek to impose restrictions on ministers on how assisted dying may fit within end-of-life care services.

Miles Briggs’s Amendment 260 would require guidance to distinguish between lawful assistance to administer the approved substance versus direct administration. I recognise the clarity that the amendment seeks to add for medical practitioners, and I am content to support it.

On Miles Briggs’s amendment 263, I am supportive of the principle of health board involvement in developing patient pathways that reflect international best practice in jurisdictions with assisted dying systems. I refer to some of the comments that I made in the debate on an earlier grouping in response to Fulton MacGregor’s amendments, which touched very much on that subject.

I turn to Rhoda Grant’s amendments. She made some important and relevant points in relation to the issue of our developing understanding of coercive and controlling behaviour. That touches on some of the issues that are reflected in the bill, but extends far more widely, as I know from my involvement in the passing of the relevant legislation in the previous session of Parliament, when I was a member of the Justice Committee. I cannot support amendments 261 and 264, as they relate to training provisions and touch on reserved matters, but training for practitioners will be a mandatory requirement under the bill and will require to be updated for many of the reasons that Rhoda Grant has highlighted.

On Stephen Kerr’s amendments 266 and 271 and Liz Smith’s amendment 268, I do not believe that it is necessary for guidance that is made under the legislation to be subject to the Parliament’s approval. Such a measure would be unnecessary and out of step with the way in which subordinate legislation is made and scrutinised. I also note the Scottish Government’s view that amendment 266 raises competence concerns.

In relation to Mr Kerr’s amendment 271, the approach currently in the bill, which requires practitioners to have regard to guidance, is sufficient and consistent with the approach taken across other legislation. However, although I consider the proposed change to compel practitioners to be unnecessary, I am content to accept it if the Parliament wishes to support it.

11:15

On Liz Smith’s amendments 269, 272 and 273, I note that the bill already provides for guidance to be revised when the Scottish ministers consider it appropriate to do so. I am therefore not persuaded of the need for the guidance review provisions in amendment 269. If the Parliament is minded otherwise, I encourage members to support amendment 269, which takes a more proportionate approach than that taken in amendment 272 and the consequential amendment 273, both of which I cannot support.

I support Ross Greer’s amendment 270, which would make it clear that anyone who is involved in the process in which a terminally ill adult requests and is provided with assistance to end their life must have regard to the relevant guidance.

Jackie Baillie’s amendment 274 would require the chief medical officer to produce guidance on the assessment of patients who are under 25 or who have fluctuating diagnoses. As I have referred to in debates on earlier groupings, I fully recognise the value of ensuring that additional and specialist consideration is provided in those instances. Although I am mindful that the Scottish Government has noted the possibility of a CMO opting not to participate in assisted dying, I am content to support amendment 274 if colleagues believe that it is workable and useful.

I am grateful to have heard the response of Liam McArthur to my amendments 266 and 271. I will explain further why they are essential. The amendments go to the heart of an important question: who ultimately controls the safeguards that would govern how the law operates in practice? My answer to that question will come as no surprise to those who have had to listen to me over the past four or five years: it is Parliament.

Amendment 266 would require that any ministerial guidance relating to the safeguards in the act must return to the Parliament for scrutiny and approval. Amendment 271 would ensure that the guidance issued under the act had clear legal force—again, through the Parliament. Taken together, the amendments are about accountability.

To answer directly the point that Liam McArthur made about process, I do not see the bill as a particularly ordinary one. It is an extraordinary bill and an extraordinary departure from our current practice and our current societal norms. Hence, I believe that enhanced parliamentary scrutiny is essential.

Much of the detail on how the legislation will work from day to day will not be found in the bill. That has been accepted by the member in charge, and it raises issues of costs and budgets. How the legislation will work will depend on the guidance that is produced after the bill has been passed. That guidance will shape how safeguards are applied, how professionals are trained and how the system operates in practice. If that guidance can be changed without proper parliamentary scrutiny, the reality of the law could shift over time without the Parliament ever having the opportunity to examine those changes. That should concern us all.

Experience elsewhere shows how Laws of this nature can evolve once they are in operation. Canada is often cited as an example. The legislation there began with what many believed were strict limits, yet, within a relatively short period, the scope of the practice expanded far beyond what many legislators originally understood that they were voting for.

Does Mr Kerr agree that we can already see that in our own jurisdiction? For example, last month, Jersey changed the law to allow assisted suicide and, this week, it is already starting to debate whether the law needs to be changed and made easier.

Yes—that is a good example. I accept that members will have different views about how the law might develop, and that example is a template.

I would caution against using the example of Canada to reflect what happens in other jurisdictions with terminal illness mental capacity models. There are no examples of a terminal illness mental capacity model that has expanded the eligibility criteria.

Mr Kerr referred to the example of Canada, where a case asserting that the ban on assisted dying was unconstitutional was brought to the Supreme Court. The fact that the Parliament did not reflect the judgment of the court led to a further appeal that was successfully upheld, and the Parliament was required to expand the provisions in its legislation. Therefore, conflating the situation in Canada with what we are dealing with in the bill is slightly disingenuous, and I say that with the utmost respect to Mr Kerr.

I am grateful to Liam McArthur for his Intervention, and I would simply counter it by saying that, when international comparisons have been cited in relation to other aspects of the bill, there have been clear differences in how members interpret the evidence. I understand why members who are in favour of the bill might want to set Canada aside, but I do not think that we should set aside any jurisdiction where such a law has been enacted or its experience of such a law in practice. The example of Jersey is germane to that point.

I accept that members will hold different views on any subsequent development of the law, but I suspect that most colleagues will agree on one point, which is that such changes should not happen without full parliamentary scrutiny and democratic accountability. Safeguards should never be quietly diluted through guidance issued behind closed doors—I hope that we would all agree with that. If this Parliament creates such a law, it must never lose control of how that law evolves.

That is the purpose of my amendments. They ensure that, if guidance relating to safeguards is to be issued or changed, it must come back here for consideration and approval by the elected representatives of the people of Scotland.

I am inclined to agree with Mr Kerr on the importance of parliamentary accountability and scrutiny—I am just not clear on what the mechanism for those would be. Amendment 266 does not state what the mechanism for parliamentary approval would be. I apologise if I have missed this in another amendment, but is he envisaging something similar to what Liz Smith is proposing—that is, a resolution of Parliament—or some other mechanism?

I think that the ideas are similar in that respect, but the fundamental point is that Parliament must express its approval. The issue that I hope that Ross Greer and I agree on is the importance of democratic scrutiny and control.

The example of other jurisdictions has been cited. If we are going to expand the law over time, in the eventuality that that is presented as a proposal, that proposal must be accompanied by the highest level of legislative scrutiny. Frankly, that is how profound the issue is, and that is the level of scrutiny that such a matter deserves.

The Parliament should not place itself in the position of not retaining control over such matters, so amendments 266 and 271 seek to ensure that parliamentary oversight remains central to how the law operates, and I hope that colleagues will be sympathetic to that view. The amendments would ensure that safeguards could not be altered unless they had returned to the chamber.

Again, I hope that colleagues understand my motivation in lodging these amendments and that it is appreciated more widely how important democratic scrutiny and control are. When it comes to legislating on matters of life and death, I do not think that that level of accountability could be described as excessive. Indeed, it is not excessive—it is the least that the Parliament should require.

I call Liz Smith to speak to amendments 268 and other amendments in the group.

My four amendments in the group—amendments 268, 269, 272 and 273—seek to build on the amendments that Mr Kerr has lodged, and all share the common purpose of seeking to ensure that the Parliament retains proper and democratic oversight of how guidance under the act operates in practice. I believe that that is a view shared by members across the chamber.

As the debate over the past four days has shown, colleagues appreciate that the bill places significant responsibility in the hands of the Scottish ministers. The guidance issued under the act will shape how the service functions across Scotland, influencing the decisions that are taken by medical practitioners, health boards and other public bodies. For that reason alone, it is not sufficient for such guidance simply to be issued and then left untouched—Parliament has an important role in scrutinising it. I will come to Mr Greer’s point in that respect in a minute.

Amendment 268 provides that, when guidance that is issued under section 5 has to be reviewed or revised, those changes would have be brought back to Parliament for approval by resolution. I say to Mr Gray that that applies in the first instance, but other amendments make such approval possible at a later stage should the Parliament determine that such changes have to be made.

Amendment 272 would ensure that such guidance was not left to drift indefinitely. It would require the guidance to be formally reviewed after an initial period of three years and then at least every five years thereafter. I understand Mr McArthur’s point that it is unusual for such guidance to require that level of parliamentary oversight, but assisted dying is such an important issue that it is not just sensible but essential to have such a provision in the bill.

Would Liz Smith be surprised if the guidance had not developed over that period, and would it concern her if it had not?

I think that that is highly possible. Obviously, some of the guidance would be a matter for the medical practitioners, who would have an influence over whichever Government ministers were responsible for reviewing it. However, we must have a parliamentary process that scrutinises any changes that we make because Parliament is the sovereign body and, as Mr Kerr rightly set out in relation to his Amendment 266, that is critical to the oversight of any legislation that we might pass.

Amendment 269 goes a little bit further by placing

“at least once every five years”

a duty on the Parliament to

“review the operation and effectiveness”

of the guidance. That review would allow Parliament to assess whether the safeguards in the bill were working as intended and, if necessary, recommend that ministers revise the guidance if the safeguards were not being adequately upheld.

I am eternally sympathetic to the notion that the Parliament should have as much say as possible in major change. We have amended other Bills in a similar fashion. However, there is a technical niggle at the back of my mind: we do not know the make-up of the next Parliament or its future views on any legislation that might be passed in this session. My worry is this: could the resolution that Ms Smith’s amendments would require for any changes in guidance to be approved be used as a way to block the act in its entirety? Alternatively, is it her view that, if a future Parliament refused to approve changes to the guidance, it would revert back to whatever the existing guidance was, and the act would still be law? Could future Parliaments use the provisions as a blocking mechanism?

Mr Greene makes an interesting point. I do not think that the act would be blocked because of the review having to be undertaken in successive periods. My amendments seek to ensure that, should the guidance change, there is proper parliamentary scrutiny of that. As I said when I dealt with Mr McArthur’s point, that is an unusual approach but, because the bill is so critical—let us be honest: this is the most important debate that we have had in the Parliament—we have to ensure that the safeguards are in place.

Amendment 273 is a consequential amendment that would ensure that the provisions that relate to the review mechanisms fit coherently with the rest of section 23.

Taken together, amendments 268, 269, 272 and 273 recognise that, if Parliament legislates on assisted dying, our responsibility does not end on the day that the bill is passed. We absolutely must continue to monitor how the system operates in practice, how many people are accessing the service, their reasons for doing so and the wider impacts on families, healthcare professionals, our NHS and local authorities. That regular scrutiny and review would help to ensure that the safeguards that Parliament intends are not weakened over time.

I urge colleagues to support my amendments.

11:30