Official Report 707KB pdf
The next item on our agenda is oral evidence from the Cabinet Secretary for Health and Social Care and his supporting officials on legislative consent memorandum LCM S6M-62, which is on the Terminally Ill Adults (End of Life) Bill.
The purpose of the bill is to make provision for a terminally ill person who is living in England or Wales, aged 18 and above, with capacity, who has been ordinarily resident in England or Wales for 12 months, and who is registered with a general practice in England or Wales, to be given—on request—assistance to end their own life.
LCM S6M-62 relates to an amendment that was agreed during the House of Commons’ report stage, which extends the scope of some of the provisions of the bill to Scotland.
Specifically, clause 43 makes provision requiring that
“The Secretary of State must by regulations make provision prohibiting … the publication, printing, distribution or designing (anywhere) of advertisements whose purpose or effect is to promote a voluntary assisted dying service”
and prohibiting
“causing the publication, printing, distribution or designing of such advertisements.”
Clause 43 also provides that any regulations
“May not amend this Act”
and
“must provide that any offence created by the regulations is punishable with a fine.”
A VAD service, for the purpose of the clause, means the service as set out in accordance with the act, which means VAD services in England and Wales.
Although the analysis prepared for the bill’s sponsor concluded that clause 43 did not trigger the need for the consent of the Scottish Parliament, the Scottish Government took a different view. It says that clause 43 appears to be for a purpose—namely, prohibition of advertising—that is within the legislative competence of the Scottish Parliament.
I welcome to the committee Neil Gray, the Cabinet Secretary for Health and Social Care; Ailsa Garland, solicitor and Susan Wilson, assisted dying shadow bill team manager, both from the Scottish Government.
I appreciate the opportunity to speak about the legislative consent memorandum that was lodged by the Scottish Government on 27 August, which recommends that the Scottish Parliament gives its consent to clause 43 of Kim Leadbeater MP’s Terminally Ill Adults (End of Life) Bill.
Let me be clear that I am here due to the provision described in the LCM and my recommendation for it. It is not, in any way, a comment or opinion on Ms Leadbeater’s Bill, which is for the UK Parliament to decide upon. The committee will be aware that nothing in Kim Leadbeater’s bill has any effect on Liam McArthur’s bill in the Scottish Parliament, which is going through an entirely different process. The LCM process is part of our constitutional settlement, and that is what I am here to provide information on, namely the effect of clause 43 in Scotland and why I am recommending support.
Turning to the LCM, clause 43 of the Terminally Ill Adults (End of Life) Bill imposes a duty on the Secretary of State for Health and Social Care in the UK 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 that provision, the Scottish Parliament would be agreeing that the service introduced could not be promoted in Scotland. That is the wish of the UK Parliament, which I believe should determine if and where the English and Welsh assisted dying service is to be advertised. The Scottish Government’s view is that clause 43 is for a purpose that falls within the legislative competence of the Scottish Parliament, considering the schedule 5, section C7 reservation in the Scotland Act 1998, which covers the 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. As such, 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 where the English and Welsh assisted dying service can be advertised in Scotland but not in England and Wales.
I hope that the committee finds that explanation and outline of the Scottish position helpful, and I am happy to answer the committee’s questions.
I have not received any indication from members that they wish to ask questions on this item.
Sorry, convener, I was not aware that you had asked for a previous indication of desire to ask questions.
My question is not about reserved or devolved competence and the requirement for an LCM but about the content of the provision that the LCM covers. Cabinet secretary, are you confident that the provision will apply only to what would commonly be understood as advertising and would not prohibit the publication of, for example, arguments about the policy merits of the legislation or how services should be delivered or the provision of factual information regarding the service?
That is my expectation. As it is legislation in the United Kingdom Parliament, it is not an area that I have control over—it is for members of the UK Parliament to determine—but my expectation would be as Mr Harvie has outlined. We have lodged the LCM to ensure that we are in line with other parts of the UK on advertising and promotion as opposed to the production of factual information.
Apologies, Mr Harvie. I was not aware that you had a question.