To be honest, the Scottish Parliament which I campaigned for and indeed was, for many years, keen to be a member of has been more than a bit of a disappointment. I don't by that mean that the Scottish Government's have been a disappointment. I might think, recently at least, that they have been but that would be a Party partisan point. I mean instead that the Parliament itself as an institution has been a disappointment. For it seems unable to realise when it is wasting its own time.
I give but one historical example although there are others. In May 2015, Sandra White, a SNP backbencher introduced a piece of legislation called the Footway Parking and Double Parking (Scotland) Bill. This was a meretricious measure aimed at penalising footway and double parking. In principle it had cross Party support. The problem was that it was not, then, within the devolved competence of the Scottish Parliament. This was due to an obscure reservation to Westminster of powers over public roadways that was within the terms of the original 1998 Scotland Act. The reservation was removed by the 2016 Scotland Act but patently hadn't been in 2015. Ms. White had overlooked this but the legal advisers to the Presiding Officer had not and in the statement of legislative competence the Presiding Officer was by law obliged to issue in relation to any Bill when introduced, the Presiding Officer pointed this out. Now, you would have thought that would have been the end of the matter. But it wasn't. For the next ten months this ultra vires Bill was considered, including twice with evidence being taken, by no less than seven committee meetings of the Parliament. all proceeding on the, indisputable anyway, knowledge that the Bill was incompetent. It only finally fell when the Parliament was dissolved in March 2016 for the Scottish General Election of that year.
Now, why am I drawing your attention to this footnote in history? Because in the grand scheme of things and with a much more important and contentious piece of legislation, Liam McArthur's Assisted Dying for Terminally Ill Adults (Scotland) Bill. This Bill is not within the legislative competence of the Scottish Parliament. That is not just my opinion, it is the opinion of The Scottish Government (!) and of Liam McArthur himself (!!).
In a memorandum sent to the lead committee, The Health Minister wrote on 30th September past in the following terms.
17. In the Scottish Government’s view, the Bill in its current form is outside the legislative competence of the Scottish Parliament. Of particular concern is section 15(8), which gives power to the Scottish Ministers to specify, in regulations, a drug or other substance as an “approved substance” (to be provided to the terminally ill adult to end their own life), and appears to relate to the reserved matter of medicines, medical supplies and poisons (section J4 of schedule 5 of the Scotland Act 1998).
18. Furthermore, and noting that the Bill represents a novel and fundamental shift in the role of medical practitioners, and the regulatory framework in which they operate, from protecting/enhancing patients’ lives to assisting in termination of life, it is considered that the following provisions in the Bill may relate to the reserved matter of regulation of the health professions (section G2 of schedule 5 of the Scotland Act 1998): • Sections 4(5)(a) and 6(6)(a) of the Bill, which make provision for the Scottish Ministers to specify, in regulations, qualifications and experience of registered medical practitioners who can carry out functions under the Bill. • Section 7(2)(c), which requires a registered medical practitioner, where they have sought a second opinion from another medical practitioner, to take that opinion into account (in carrying out an assessment of a terminally ill adult). • Section 18 of the Bill, which gives a right to conscientious objection.
Now, it is not as if this has passed Mr McArthur by, for the Memorandum goes on to observe
19. The Bill’s [own]Policy Memorandum, at paragraph 7 onwards, acknowledges that, in order to have a truly comprehensive assisted dying scheme “something else would likely need to happen”, and makes reference to the possibility of using various Orders under the Scotland Act 1998, such as a section 30 Order. The Scottish Government agrees that further processes would have to be gone through in order to bring the Bill within competence.
But the crucial point is what follows.
20. It should be noted that the process for such an Order generally takes 12-18 months and would require the co-operation of the UK Government, as it requires the approval of both Houses at Westminster, as well as the Scottish Parliament, before it is made by His Majesty in Council. This process would need to be completed prior to a vote being taken on the Bill at Stage 3. (my emphasis, for a s.30 cannot be retrospective).
Now, the process for a s.30 hasn't even formally started. It is unlikely to be an uncontentious one and the issues relating to the regulation of the medical profession, in particular, would throw up wider issues than those relevant to the current legislation so, even if the UK Government are willing to start that process (of which there is no evidence they have even been asked to do) it is difficult to see the process being concluded in less than the minimum period of twelve months the Scottish Government give as the lowest estimate of time a s.30 would take. Given that the current Holyrood Parliament will be dissolved in less than eleven months to allow the 2026 General Election to take place then it becomes patent that this Bill cannot possibly pass. or even be put forward to pass. before that dissolution. If it hasn't then with that dissolution the Bill would fall, At best, post the election, Mr McArthur or another MSP would need to start again if or when a s.30 was ultimately granted. And if the current Leadbetter Bill fails to pass the Commons for England and Wales that would become a pretty big if. Mr. McArthur must recognise this, but he, and the Parliament, just carry on.
Now assisted dying is a contentious matter raising hope for some and fear in others but my point is that the current exercise is just a complete waste of time. But nobody in the Scottish Parliament seems willing to point that out.