Chamber and committees

Until we had some type of written or formalised constitution, these things would have to be looked at on an issue-by-issue basis. We also have this Parliament, and it would be up to the politicians of the day to agree, or not, that a referendum should, or should not, take place on any issues going forward.

It is common knowledge that some colleagues across the chamber voted for the bill at stage 1 but were quite clear about reserving their right to offer support later in the process, depending on amendments at stages 2 and 3. I genuinely feel that, if a referendum were to take place, that would be a genuine reflection of a citizens assembly.

I have noted the Scottish Government’s consideration of what such a question would be in the documentation on the committee’s web page, but I do not, for one minute, believe that concerns about whether the question would be fair or unfair are realistic. I would make one suggestion, which is this: “Do you support the provisions in the Assisted Dying for Terminally Ill Adults (Scotland) Bill, as passed in the Scottish Parliament on whatever date? Yes or no?” That is not a leading question. Obviously, other suggestions would be available.

As for timescales, if the bill were to pass, that would happen at some point early in 2026, so no referendum could take place before the Scottish elections. I think that having a referendum of any type within the first two and a half years of the next parliamentary session would be a logical timescale, but if it were to happen in the early part of that two-and-a-half-year period, that would be fine, too. I am very relaxed about that, as long as it happened within that period of time.

I am happy to end there, convener.

Section 20 is designed to ensure that, if a person helps someone to end their own life in accordance with the processes that are set out in the bill, they could not be sued for doing so. The Salvation Army, with which I worked on the amendments, wants to ensure that, if a person helps someone to decide not to end their own life, they would be equally protected from being sued.

Such a situation might seem unlikely; it is a hypothetical situation. Let us say that, after the bill passes into law, a terminally ill adult is thinking of seeking assisted dying and they discuss the possibility with people whom they trust. As a result of one of those discussions, the person changes their mind and decides not to seek assisted dying but to let the illness take its course. Some members of the family do not agree with that decision. They do not understand how the person could have changed their mind and chosen a longer death, which they think will be less dignified and, perhaps, more costly, because of care expenses, than assisted dying would have been.

After the individual dies, family members blame the person with whom the individual had the discussion for persuading them to choose a way of dying that they believe was not in the best interests of the now deceased person. They try to sue the person for having made their relative’s death more distressing than, in their view, it could and should have been. No one knows how the court would respond to such a case. It might decide that the claim could not succeed or that there were no legal grounds for bringing it, but no one can be sure.

The Salvation Army proposed amendments 250 and 251 to make sure that such a claim could not be made. Rather than being about seeking special protections for anybody, they are about equal protection before the law. It would be perfectly reasonable for a terminally ill person who is thinking about seeking assisted dying to discuss the question with family, friends and other persons whom they trust. The amendments seek to ensure that everyone who is part of those discussions can exercise that privilege and responsibility without fear that a civil claim might later be made against them, as long as they act honestly, in good faith and otherwise in accordance with the law.

The bill gives that protection to people who help a terminally ill adult end their life. Amendments 250 and 251 are seeking equal protection for those who provide advice to the contrary.

I move amendment 250.

I thank Liam McArthur for his comments and for acknowledging what is behind the amendments, which is the dialogue that I had with the Salvation Army. I genuinely did not fully take on board the issue initially, but even without the discussion that we had, I recognised that we do not know what is ahead of us and that the law can change. The purpose of the two amendments is safeguarding and protecting individuals who might be involved in the type of dialogue that I mentioned. It is really just about safeguarding.

Can I come back in briefly, convener?

If Mr McArthur is content to have further dialogue, I am content not to press amendment 250 and not to move amendment 251, although I could do so at stage 3, depending on the conversation that we have with the Salvation Army.

Amendment 250, by agreement, withdrawn.

Amendment 251 not moved.

Section 20 agreed to.

After section 20

Amendment 62 moved—[Jackie Baillie].

My amendment 259 is a substantive amendment and amendments 281 and 285 are consequential to it. Fundamentally, the amendments provide for a referendum of the bill’s proposals if it is successful at stage 3. Scotland does not have a written constitution but, if it did, I would want constitutional matters to be decided by referenda of the people.

I have considered the engagement that takes place in other jurisdictions—Ireland and Switzerland are two examples—as well as elsewhere. That level of engagement is hugely important for the sense of local democracy, particularly when it comes to matters of such importance. As we are aware, those countries have had referenda on assisted dying, and I argue that the issues before us in the bill should be considered in that context.

As I have previously stated during stage 2, although this is technically a normal bill, the subject matter is not a normal issue. I am sure that we can all agree on those two points. I have long considered referenda to be essential exercises in democratic activity—long before I was elected to the Scottish Parliament in 2007. Just because there is no such tradition in Scotland or the UK does not mean that it is not the right thing to do. Early in this process, I suggested a referendum on assisted dying to Friends at the End, which was working with Liam McArthur, and I met the group online on 12 November 2021.

Prior to the stage 1 debate, more than 270 constituents from Greenock and Inverclyde directly contacted my office to ask me to vote against the bill; in contrast, 130 constituents contacted me to ask me to support it. In addition, I received emails from elsewhere across the country. The online situation was very different; I found that most people wanted me to support the bill, with a minority wanting me to vote against it.

When the previous bill—Patrick Harvie’s bill—came before the Parliament, I surveyed more than 10,000 constituents in Inverclyde, and I found that a slight majority of the respondents wanted me to vote against the bill. The figure was around 54 or 55 per cent. I am sure that, due to differing demographics, faiths, health inequalities and many other factors, the results in every constituency will be mixed, notwithstanding the poll undertaken by Dignity in Dying. So, I genuinely have no idea what the outcome would be in Inverclyde if a referendum were to take place.

I listened to Liam McArthur’s comments, but it is still worth while to speak to my amendment 249, which was drafted with the Salvation Army. The stage 1 report noted in paragraph 356 a “widespread view” that there needs to be more clarity about how institutions could reasonably be expected to respond to the legalisation of assisted dying if the bill were to pass.

The Salvation Army is a key provider of social services across the country, including in my Greenock and Inverclyde constituency. It provides 16 residential and non-residential services for people who are experiencing homelessness. It has informed me that, in countries in which assisted dying is legal, such as Switzerland, Government funding and commissioning for its residential services in particular was put under threat because it had not wished to provide facilities for assisted dying on its premises.

Section 18 of the bill recognises that individuals who are working with a terminally ill person may have a personal conscientious objection to assisted dying. It respects their right to hold that objection by saying that nobody should suffer any detriment because they cannot, in conscience, take part in the assisted dying process. However, the Salvation Army—which I support in this aspect—believes that organisations, too, can have a conscience that is based on their ethos. Many organisations that provide care and support to vulnerable people, including people who are terminally ill, do so because the people who founded the organisation had a set of moral beliefs that impelled them to provide care for people who need it. Those beliefs have entered into the conscience of that organisation. They provide the moral and ethical basis for its continued work. They are the reasons why the organisation continues to do what it does.

Sometimes, those beliefs will support or be neutral towards the idea that terminally ill adults should be able to choose to have help to end their lives. In such cases, the organisation will be able to accommodate the legalisation of assisted dying with little difficulty. However, that will sometimes not be the case; sometimes an organisation will have a view of human life, or of its role at the end of life, that will not be able to accommodate legalised assisted dying. If such an organisation is told that it must accommodate legalised assisted dying or it will lose public funding for its services, it will face a very difficult dilemma of a kind that the bill says that an individual should not be exposed to.

The Salvation Army is calling for a clear statement in the bill that organisations should have the right to exercise conscientious objection to participation in assisted dying. No organisation or individual should be penalised for their conscientious objection to assisted dying. [Interruption.] Sure, I was just coming to an end.

No, that is certainly not the purpose of amendment 249. I am not sure whether the Salvation Army operates in your constituency, Mr FitzPatrick. I know from the engagement that I have had with it over many years, because of the range of services that it operates, that that is certainly not where it is coming from. I go back to the point about Switzerland that I referred to. In the end, the Salvation Army had to operate within the new law that was introduced in Switzerland, but it found it difficult to undertake that.

Regarding the situation in Scotland with this legislation, the Salvation Army would not want to be in a position in which people would have to leave its premises. At the same time, it is an organisation that clearly does not believe in the premise of assisted dying.

The issue is clearly a concern for the organisation because of the experience that it faced in Switzerland. Fundamentally, it will abide by the law in any country in which it operates, which I am sure that we would all appreciate and expect. However, as an organisation, it does not support the legislation that is being proposed. If the bill were to pass, it would be difficult for the organisation to operate the bill’s provisions, particularly in its residential settings. However, it would not break the law.

I listened to Liam McArthur’s comments, but it is still worth while to speak to my amendment 249, which was drafted with the Salvation Army. The stage 1 report noted in paragraph 356 a “widespread view” that there needs to be more clarity about how institutions could reasonably be expected to respond to the legalisation of assisted dying if the bill were to pass.

The Salvation Army is a key provider of social services across the country, including in my Greenock and Inverclyde constituency. It provides 16 residential and non-residential services for people who are experiencing homelessness. It has informed me that, in countries in which assisted dying is legal, such as Switzerland, Government funding and commissioning for its residential services in particular was put under threat because it had not wished to provide facilities for assisted dying on its premises.

Section 18 of the bill recognises that individuals who are working with a terminally ill person may have a personal conscientious objection to assisted dying. It respects their right to hold that objection by saying that nobody should suffer any detriment because they cannot, in conscience, take part in the assisted dying process. However, the Salvation Army—which I support in this aspect—believes that organisations, too, can have a conscience that is based on their ethos. Many organisations that provide care and support to vulnerable people, including people who are terminally ill, do so because the people who founded the organisation had a set of moral beliefs that impelled them to provide care for people who need it. Those beliefs have entered into the conscience of that organisation. They provide the moral and ethical basis for its continued work. They are the reasons why the organisation continues to do what it does.

Sometimes, those beliefs will support or be neutral towards the idea that terminally ill adults should be able to choose to have help to end their lives. In such cases, the organisation will be able to accommodate the legalisation of assisted dying with little difficulty. However, that will sometimes not be the case; sometimes an organisation will have a view of human life, or of its role at the end of life, that will not be able to accommodate legalised assisted dying. If such an organisation is told that it must accommodate legalised assisted dying or it will lose public funding for its services, it will face a very difficult dilemma of a kind that the bill says that an individual should not be exposed to.

The Salvation Army is calling for a clear statement in the bill that organisations should have the right to exercise conscientious objection to participation in assisted dying. No organisation or individual should be penalised for their conscientious objection to assisted dying. [Interruption.] Sure, I was just coming to an end.