Official Report 849KB pdf
Good morning, and welcome to the 31st meeting in 2025 of the Health, Social Care and Sport Committee. I have received apologies from Sandesh Gulhane.
Our first agenda item is to consider correspondence received by the committee from Jeremy Balfour, which raises certain points about the relationship between the Assisted Dying for Terminally Ill Adults (Scotland) Bill and the United Nations Convention on the Rights of Persons with Disabilities. I refer members and anyone watching to the note by the clerk in the public papers, which provides some useful background information.
I invite Mr Balfour to make a few opening remarks about his correspondence.
Good morning. Thank you for the opportunity to speak. I will keep my remarks brief, as I know that you have a long day ahead.
My letter suggests that, once stage 2 has been completed, the committee writes to the United Nations Committee on the Rights of Persons with Disabilities to ask whether it believes that the bill is in line with the convention and that persons with disabilities are not ill affected by it. The advantage of doing so is that, if that committee comes back and gives a clean bill of health, that will give reassurance to the Parliament. If that committee comments on the bill, that will give members the opportunity to lodge amendments for clarification at stage 3.
The reason for suggesting that is that none of us would want to get to a point where the bill is passed and then challenged in the courts on any grounds at all. It is a belt-and-braces approach to give the whole Parliament confidence that persons with disabilities are not going to be coerced as a result of the bill, and that, if they are at risk of that, amendments could be lodged.
Ultimately, it is for the Parliament and us, as MSPs, to make the final decision, but the UN committee is there to advise and help, and it is my suggestion that, once stage 2 has been completed, the convener writes, on behalf of the committee, to seek clarification, so that amendments can be lodged if required.
I invite Liam McArthur, the member in charge of the bill, to comment on the contents of Mr Balfour’s correspondence.
I thank Mr Balfour for setting out the rationale for his position. I also thank the committee for the extensive scrutiny that it has undertaken throughout stage 1 and stage 2.
The stage 1 scrutiny included evidence on the bill’s protections for vulnerable groups in the context of the right to life under the European convention on human rights and the rights in the UN Convention on the Rights of People with Disabilities, including article 12.
At stage 2, close to 300 amendments have been lodged, aimed at further strengthening the carefully considered safeguards in the bill. In the interest of time, I will not reprise those.
Stage 2 amendments relating to age, capacity, detection of coercion and palliative care have all already been debated, and many are still to be considered. An amendment raising the age limit for requesting an assisted death from 16 to 18 has already been agreed to. So, too, was my amendment to include a for-the-avoidance-of-doubt provision that no one can be considered as meeting the terminally ill definition only because they have a disability or a mental disorder.
Turning to the question of coercion, I point the committee to the part of the policy memorandum relating to equalities and the human rights issue. Paragraph 99 states:
“There have been various cases brought before the European Court of Human Rights ... arguing that the prohibition or lack of availability of assisted dying is a breach of the ECHR. Whilst these cases have not been upheld, the”
Court
“has not stated that assisted dying is either compatible or incompatible with the ECHR. The approach of the”
Court
“to date has been to recognise that countries/jurisdictions are better placed than the Court to decide on nationally sensitive issues (this is known as the ‘margin of appreciation’).”
I also remind members that I completed an equalities impact assessment for the bill, which was sent to the committee and is available on the bill’s web page.
Furthermore, extensive written and oral evidence was received at stage 1 on issues relating to people with a disability, which is reflected in the committee’s stage 1 report. I have also previously cited research by Dr Ben Colburn and others that concludes:
“1. People with disabilities are not generally opposed to assisted dying laws.
2. Assisted dying laws do not harm people with disabilities.
3. Assisted dying laws do not show disrespect for people with disabilities.
4. Assisted dying laws don’t damage healthcare for people with disabilities.”
On the issue of coercion that Mr Balfour raises, I refer members to my response to the chief executive of the Scottish Partnership for Palliative Care, which was copied to MSPs last week—again, that is a matter of record. It makes it clear that my intention and, indeed, understanding is that doctors will use the full extent of the General Medical Council guidance and relevant training and experience when making assessments. I therefore believe that the bill is consistent with other relevant legislation, and with professional practice. It ensures that safeguards remain robust, clear and enforceable, while allowing professional guidance to continue to support clinicians in identifying more subtle or indirect influences in practice.
Amendments to further refine the definition of “coercion” in the bill have been and will be debated and decided on by the committee. I believe, however, that the terms “coercion” and “pressure” are well understood. Indeed, I note that the Scottish Government commented that providing a definition of coercion that brings in broader internalised pressures could have the opposite effect and create uncertainty.
I endorse the role of the UN Committee on the Rights of Persons with Disabilities in monitoring the practical application of national legislation in the context of the convention. However, Mr Balfour’s proposal that a final vote at stage 3 not take place until the UN committee has certified that the bill aligns with the convention would not only interfere with decisions taken by this committee at stage 2 but pre-empt the legitimate scrutiny process of this Parliament, the remainder of stage 2 and the amending part of stage 3, which is still to come. It would not be appropriate to seek to interfere with the legitimate processes of this Parliament, including the lengthy and thorough scrutiny process at stage 1, which resulted in the Parliament agreeing to the general principles of the bill. Mr Balfour would still be free to engage with the UN committee, but I believe that this committee, Parliament and the public can have confidence in the robust process of scrutiny being applied to the bill.
Before I propose a course of action, does any member of the committee wish to comment on Mr Balfour’s correspondence?
I appreciate Jeremy Balfour’s contribution to the committee. He has made sure that we are thinking about the issues carefully. I understand Mr Balfour’s position on the bill: he does not support the bill, and I respect that. What Mr Balfour is proposing would be a new procedure for the Parliament. If we believe that we need a new procedure, the Standards, Procedures and Public Appointments Committee should consider that. However, it is not appropriate for us to bring in a new procedure to the Parliament and I do not think that it is required.
The topic that Mr Balfour is raising is one that this committee considered in great depth. We took lots of evidence at stage 1, and that is all there online for folk to look at and understand. I propose that we thank Mr Balfour for his suggestion but politely decline.
I agree with Joe FitzPatrick. In addition, I make clear my strong support for the principle that the Parliament as a whole is compliant with human rights in the broadest sense. The existing means to ensure that is that the member in charge of a bill, as well as the Presiding Officer, have to satisfy themselves in relation to the human rights issues. Any legislation that we pass that is found not to be compliant with human rights is not law. That is the appropriate and strong safeguard against any impact on human rights in the broadest sense, and it is the appropriate way for us to proceed.
I have a question for Mr Balfour. Obviously, Scotland would not be the first country to pass assisted dying legislation, and there is a similar process going on in the Westminster Parliament. Has the UN committee made any comment on existing legislation or on the legislation at Westminster?
Yes, it has, is the answer to your question. I understand Mr McArthur’s point, but the only point that I was trying to make—and Mr FitzPatrick is correct to some extent—is that, if the bill goes through and we get to stage 3, I want to ensure that it is competent and that we do not, as Mr Harvie alluded to, have to face legal action afterwards. I think that this approach will give the UN committee an opportunity not to tell us what to do but simply to point out any areas that it thinks might require stage 3 amendments. After all, we could end up with the bill being passed by this Parliament and then the courts striking down the whole law on the basis of one or two amendments, which would put us back to stage 1.
My suggestion seeks to be helpful, in some respects, to Mr McArthur by making sure that the sign-off takes place and that any issues can be debated at stage 3 rather than in the courts post this whole process. That is my simple suggestion, but if, as I have said, the committee is not for it, I absolutely understand that.
You said that other jurisdictions have sought an opinion. What opinion came back?
I do not have the detail on that, but each piece of legislation will be different, and what the UN committee comments on is whether it is in line with disability rights issues.
I have a follow-up to the convener’s questions. There is assisted dying legislation in other jurisdictions. Do you feel that elements of the bill differ from other things and therefore require more scrutiny?
Can I bring in my colleague Pam Duncan-Glancy to answer that? She has more knowledge about this particular area than I do.
Yes.
Thank you.
Good morning to the committee and others, and thank you, convener, for allowing me to comment on this issue.
The most recent concluding observation by the UN Committee on the Rights of Persons with Disabilities in relation to Canada, for example, said that track 2 MAID—or medical assistance in dying—is for people with disabilities whose deaths are not reasonably foreseeable. That is a similar situation, given that the bill currently going through the Scottish Parliament does not have a proximity-to-death definition. The CRPD committee says that that approach was based on
“negative, ableist perceptions of the quality and value of the life of persons with disabilities, including ... that ‘suffering’ is intrinsic to disability”
rather than the fact
“that inequality and discrimination cause and compound ‘suffering’ for persons with disabilities”.
Disabled people’s organisations in Canada said:
“The UN is clear that we must do better in upholding the rights and dignity of persons with disabilities”,
and the UN committee itself recommended repealing track 2, implementing “a co-ordinated deinstitutionalization strategy” and withdrawing the interpretative declaration under, and reservation to, article 12 of the convention.
A number of different concluding observations were made in relation to this specific aspect of the bill going through the Scottish Parliament. The only way that the UN committee, which is a committee of experts of disabled people, can give any advice to the Scottish Parliament is if a body such as either the committee or the Government makes that request. That is why it is important that the committee seriously considers the request that has been put to it today.
I thank Pam Duncan-Glancy for putting that on the record. The difference, though, is that we do not have a track 2 proposed in the bill before us, and Liam McArthur’s amendments ensure that there will be no consideration of somebody as being terminally ill by dint of their having a disability or a mental health condition. Therefore, I am pretty convinced that we are not going along the same lines as what exists in Canada, and I do not think that the UN committee would see that, either.
The decision before the committee is whether or not to write to the UN committee. For clarity, I would point out that it meets relatively infrequently, so should this committee wish to proceed with writing to it, it might not be possible for it to respond before we get to stage 3. I am not proposing that a letter—or lack thereof—would interfere with the legislative process that the Scottish Parliament has timetabled.
I am looking for some indication from the committee as to whether it wishes to write or not.
I propose that we do not write.
If it does not interfere with the legislative process, I do not see any reason at all why we would not write.
I do not think that it is necessary.
The committee is not agreed, so we will go to a vote.
The question is, that the committee write to the UN Committee on the Rights of Persons with Disabilities to ask it to express a view on whether the Assisted Dying for Terminally Ill Adults (Scotland) Bill is compatible with the UN Convention on the Rights of Persons with Disabilities. Are we agreed?
Members: No.
There will be a division.
For
Harper, Emma (South Scotland) (SNP)
Sweeney, Paul (Glasgow) (Lab)
Whitham, Elena (Carrick, Cumnock and Doon Valley) (SNP)
Whittle, Brian (South Scotland) (Con)
Against
FitzPatrick, Joe (Dundee City West) (SNP)
Harvie, Patrick (Glasgow) (Green)
Abstentions
Haughey, Clare (Rutherglen) (SNP)
Mochan, Carol (South Scotland) (Lab)
The result of the division is: For 4, Against 2, Abstentions 2. Therefore, the committee will write to the UN committee.