Official Report 1039KB pdf
The next item of business is a debate on motion S6M-20037, in the name of Neil Gray, on a legislative consent motion for the Terminally Ill Adults (End of Life) Bill, which is United Kingdom legislation.
I call the cabinet secretary to speak to and move the motion.
17:33
The debate is about whether the Scottish Parliament should give its consent to clause 43, on prohibition on advertising, in Kim Leadbeater’s Terminally Ill Adults (End of Life) Bill. I am speaking to the provision as described in the motion. My recommendation on behalf of the Scottish Government is that the Parliament gives its consent.
The motion in front of Parliament today is necessary to protect the constitutional settlement in the normal manner of legislative consent motions and is not a comment on the content of Ms Leadbeater’s bill. The Scottish Government does not have an opinion on the content or principle of that bill, which it is the UK Parliament’s responsibility to scrutinise.
Ms Leadbeater’s bill has no effect on Liam McArthur’s Assisted Dying for Terminally Ill Adults (Scotland) Bill, and neither does the motion; nor should the two bills be conflated, as they are undergoing very different processes in their respective Parliaments.
The Scottish Government’s view is that clause 43 is for a purpose within the legislative competence of the Scottish Parliament, considering the schedule 5, section C7 reservation in the Scotland Act 1998. The C7 reservation covers regulation of, among other things,
“misleading and comparative advertising, except regulation specifically in relation to food, tobacco and tobacco products”.
It does not reserve advertising generally.
Therefore, we believe that the Scottish Parliament’s consent is required for clause 43 and that it should be given, so that we do not find ourselves in a situation in which the English and Welsh assisted dying service can be advertised in Scotland but not in England or Wales.
Let me turn to the substance of the provision under scrutiny today. Clause 43 of the Terminally Ill Adults (End of Life) Bill imposes a duty on the Secretary of State for Health and Social Care to make regulations to prohibit
“the publication, printing, distribution or designing ... of advertisements whose purpose or effect is to promote”
the England and Wales
“voluntary assisted dying service”.
The purpose of clause 43 is stated to be to prevent pressure from being put on vulnerable people or the undermining of national suicide prevention strategies through the unethical advertisement of the England and Wales service. By consenting to the provision, the Scottish Parliament would be agreeing that the English and Welsh service, if it was introduced, could also not be promoted in Scotland.
Effectively, we are making sure that Scotland could not be used to advertise the service and closing what would be a gap in these islands if the bill were to be passed and such a service established. Regardless of personal views on assisted dying or on Ms Leadbeater’s bill, I doubt that any member would wish to see such an anomaly.
In addition to lodging a legislative consent memorandum, I gave evidence to the Health, Social Care and Sport Committee on 23 September, where I set out the Scottish Government’s position, as I have to Parliament today.
I have also responded to questions that were raised by the Delegated Powers and Law Reform Committee around the scope of the powers in clause 43, noting that our recommendation that consent be given was
“based on the substance of the provision, not the scope of the enabling power, which will be determined by the UK Parliament.”
In that response, I noted that, as the committee had acknowledged,
“the exercise of the power in clause 43 is likely to have a very limited impact on the law relative to devolved matters”
in Scotland. Both committees have since indicated that they are content with the motion and with our recommendation that consent be given.
I hope that Parliament finds that explanation and outline helpful in setting out the Government’s position, and I urge members to agree to give consent to clause 43 in so far as it relates to devolved matters being considered by the UK Parliament.
I move,
That the Parliament agrees that the relevant provisions of the Terminally Ill Adults (End of Life) Bill, introduced in the House of Commons on 16 October 2024, and subsequently amended, relating to the prohibition on advertising of the England and Wales Voluntary Assisted Dying Service, so far as these matters fall within the legislative competence of the Scottish Parliament, should be considered by the UK Parliament.
I call Clare Haughey to speak on behalf of the Health, Social Care and Sport Committee.
17:37
During September this year, the Health, Social Care and Sport Committee undertook scrutiny of the legislative consent memorandum in respect of the Terminally Ill Adults (End of Life) Bill. During the House of Commons report stage of the bill, several amendments were agreed to that extend the scope of certain provisions to Scotland. Kim Leadbeater, as the bill’s sponsor, concluded that the legislative consent process was not engaged by any of those provisions.
The Scottish Government agreed with that assessment, except with respect to clause 43, which makes provision for regulations that prohibit
“the publication, printing, distribution or designing (anywhere) of advertisements whose purpose or effect is to promote a voluntary assisted dying service”
and
“causing the publication, printing, distribution or designing of such advertisements.”
For the avoidance of doubt, a VAD service, for the purposes of that clause, means the services as set out in accordance with the act, should the bill be passed—that is, VAD services in England and Wales. The provision would, therefore, not apply to any such services in Scotland were the Assisted Dying for Terminally Ill Adults (Scotland) Bill to become law.
However, I note that the issue of advertising was actively debated during stage 2 proceedings on the Scottish bill and an amendment was agreed to that introduces a new section to the bill that would create an offence of advertising assisted dying.
We began our scrutiny of the LCM by writing to selected stakeholders to request their written views, and a number of them responded that they had no comments. The committee also received a detailed submission from Alzheimer Scotland that raised some points about the LCM. Those included highlighting the importance of careful alignment between any UK and Scottish Parliament legislation on assisted dying
“to avoid confusion, duplication, or conflict”.
The submission emphasised the need for robust definitions to ensure a
“clear distinction between prohibited commercial promotion that may result in exploitation and permitted factual information”.
Alzheimer Scotland also raised concerns about the implications of the provisions covered by the LCM related to article 10 of the European convention on human rights, arguing that although
“limitations may be justified to protect vulnerable individuals from inducement, they must be proportionate and clearly defined.”
It concluded by recommending clear mechanisms to establish how any resulting prohibitions would be applied and overseen in Scotland.
As part of its scrutiny of the LCM, my committee received assurances from the Cabinet Secretary for Health and Social Care that the relevant provisions would apply only to what would commonly be understood as advertising and would not result in prohibitions being placed on the publication of factual information, for example, about the service in question or how it should be delivered.
On that basis, and on the understanding that the scope of the provisions is limited to the advertising and promotion in Scotland of a voluntary assisted dying service that would operate in England and Wales, my committee concluded its scrutiny by recommending that the Parliament agree to a legislative consent motion in similar terms to the draft motion included in LCM-S6-62.
17:41
The Scottish and United Kingdom Parliaments are currently scrutinising assisted dying bills. Although we may be doing so on slightly different timelines, the reality is that the debates are very similar and the nature of the amendments that are being considered are largely in the same territory of enhancing safeguards.
Wherever we stand in the debate, it is acknowledged that both bills, if successful, will have a profound impact on people across the UK, so it is right that the two Parliaments should work closely together. That is particularly the case when it comes to advertising and media, because online activity travels much more easily across borders than, for example, a poster on a wall.
In the recent House of Lords debate that considered the issue, it was noted that those with chronic illnesses have reported noticing Facebook adverts that include negative content about their treatment, about whether they can live with their condition and even content that suggests going to Switzerland for assisted dying. If Facebook algorithms are opaque, artificial intelligence is even worse. The House of Lords debate also referenced the current lawsuit against OpenAI from the family of a young man who allege that ChatGPT encouraged him to take his life.
Once again, the bill is a reminder of the work that the Governments must do to ensure that there are appropriate safeguards in place. Combating advertising that targets vulnerable and suicidal people is an issue that the Governments should be working closely together on, regardless of the outcome of the bills. We, on the Labour benches, support the legislative consent motion.
17:42
I will be fairly brief in setting out my hope that there is broad consensus on the LCM before us. I would like to hope that, as the cabinet secretary said, regardless of the range of views on the merits of legislation here in the Scottish Parliament or at Westminster, very few people would want advertising to play any role at all in the issue of assisted dying legislation or any equivalent legislation at UK level for England and Wales.
As others have said, the issue has been debated in both Parliaments in relation to both pieces of legislation. When we debated the LCM, my additional concern was that we should ensure not only that we are clear that we do not expect and do not want to allow advertising to play a role, but that we do not inadvertently make provisions against advertising that would inhibit the provision of factual information about services or, indeed, arguments about the policy merits of the legislation or how services should be delivered. When we considered the LCM in committee, I asked the cabinet secretary whether it was his expectation that the restrictions that we are talking about would apply to advertising alone, and he agreed.
We considered a range of possible restrictions in the Scottish legislation, and I had similar concerns that some variants of what was being proposed might have been more of an inhibition on the expression of legitimate opinions about assisted dying or, potentially, on research or the provision of factual information.
As we go forward, we need to ensure that we pay due attention to both aspects of that concern, either by working with colleagues in the UK Parliament to ensure that the legislation there is in fit shape or by scrutinising Liam McArthur’s bill in this Parliament at stage 3. We must ensure that we not only do not allow advertising to play a role in a way that none of us would be comfortable with, but that we do not inhibit legitimate debate—nor that we allow the use of material on social media, for example, to influence or put pressure on people to make a decision in either direction.
17:45
I will start where Patrick Harvie left off. Although there are disagreements across the Parliament on the principles of the bill, I think that we can coalesce behind the concern to ensure that the advertising of assisted dying services, whether in England and Wales or in Scotland, is robustly prohibited for the reasons that colleagues have set out.
The convener quoted the submission from Alzheimer Scotland, which pointed to the balance that needs to be struck. We all understand the importance of ensuring that access to factual information and advice—some may even need support to navigate the system—is available to those who need it. However, we must also guard against the risks that Jackie Baillie fairly highlighted in relation to the promotion—not just advertising—of assisted dying services.
I do not have a great deal more to add. The cabinet secretary set the scene well in explaining what this motion is and what it is not. There will be time enough for further debates on my bill and on this issue. The Health, Social Care and Sport Committee considered amendments in this area, which went some way but, as Patrick Harvie suggested, potentially slightly too far in relation to the impact on access to information, which is crucial. The Parliament will have an opportunity to return to the issue at stage 3 and will, I hope, ensure that the protections in my bill are as robust as they need to be.
I hope that the Parliament will back the LCM at decision time.
17:47
I have nothing further to add to the arguments that I set out in my opening statement. I rest on those arguments, and I again urge the Parliament to support the LCM.
That concludes the debate on the motion on legislative consent for the Terminally Ill Adults (End of Life) Bill, which is UK legislation.