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The substantive difference between my amendment and Mr Kerr’s is that mine would remove section 22 and Mr Kerr’s would amend it. I will speak to my amendment before I speak more substantively to his.

My amendment would remove section 22, which is entitled “Limitations on effect of Act”, from the bill. The explanatory notes and policy memorandum that accompanied the bill on its introduction referred to the likely need for Scotland Act 1998 orders to achieve a comprehensive assisted dying scheme. In particular, reference was made to the J4 medicines reservation in the 1998 act. Given that a section 30 order has been agreed by the Parliament and made by the Privy Council, and that work is in progress on a section 104 order, it would seem that the section 22 provisions are no longer necessary.

I have no further comment to make on Mr Kerr’s amendment, other than to restate our view that section 22 of the bill should be removed via my amendment.

Amendment 54 would add to the detail in section 23 to require the guidance to cover

“identification and consideration of indirect pressures”.

As I noted in my comments on group 4, professional guidance already supports clinicians to assess capacity and voluntariness. Embedding requirements in statute could increase the complexity and length of assessments, with potential implications for training, consistency of practice and practitioner confidence. It would also require any guidance to be carefully developed to avoid creating expectations that all forms of indirect pressure can be identified or mitigated in a uniform way.

Amendment 56 is a necessary technical amendment to remove section 23(3A), given that it refers to a subsection that does not exist.

On amendment 259, as I have noted before, there remains a lack of clarity around how any advocacy services would be funded or monitored in practice.

The Scottish Government’s view on amendments 261 and 264, which would add provision on mandatory training and related matters into guidance, is that those may give rise to issues of legislative competence, in view of the G2 reservation in the Scotland Act 1998, which is on regulation of health professions.

Amendment 263 would add to section 23 provision on guidance in relation to how assistance under the act is to be arranged by health boards. However, health boards have no existing functions in relation to provision of assisted dying services.

On amendment 265, the Scottish Government notes that it is unusual to specify in primary legislation a role for the Lord Advocate in the preparation of guidance. The Scottish Government’s view is that amendment 266 might give rise to issues of legislative competence, in view of the G2 reservation, on regulation of the health professions, insofar as it touches on training provisions.

On amendments 266, 268 and 269, I note that it is unusual for guidance to be laid before the Scottish Parliament.

On amendment 274, I reiterate the comments that the Scottish Government raised at stage 2—namely, that it is possible that a chief medical officer could conscientiously object to providing guidance on the act. As such, it seems preferable for guidance on the issue to be prepared by the Scottish ministers rather than the chief medical officer.

There might also be equalities considerations if specific guidance were put in place for those aged under 25, so having such guidance would need to be justifiable.

I will give way to Pam Duncan-Glancy briefly, before I read out my last sentence.

On a point of order, Presiding Officer. I am conscious that most of the amendments that remain are in some ways consequential on amendments that have already been taken. The one that was just moved—I appreciate that it was not moved by the member who lodged it—was consequential on an previous amendment that was not agreed to. I seek your guidance on whether MSPs have an obligation to ensure that we are making good law by keeping tabs on whether their amendments are consequential on amendments that were not agreed to.

Does Stephen Kerr accept that post‑legislative scrutiny is already in place as required, that a prescription is not required and that his amendments could add additional cost?

I heard what Mr McArthur said about Mr Doris’s amendment 61, and I was going to cover the issue in my remarks. Because amendments 23 and 22, which cover the issue, have been agreed to, is he concerned that there may be inconsistency in the bill if amendment 61 is also agreed to?

I open my contribution on the final group of amendments by asking all colleagues to be mindful of several consequential amendments that are among the raft of amendments that we will vote on at the conclusion of the amending stage. For instance, Bob Doris’s amendment 60 was contingent on amendment 37 being agreed to, and amendment 37 has been agreed to. I also referenced Bob Doris’s amendment 61 in my intervention on Mr McArthur. Amendment 23 inserted “and palliative care” after “appropriate social care” in section 6(2)(aa), but amendment 61 does not account for that addition. Although relatively minor, it is a technical issue that colleagues should be aware of as we conclude our voting today.

Amendment 63 would require Public Health Scotland’s report to include information about the number of persons who have completed training under the legislation. As I have outlined, the training provisions in the bill may raise issues of legislative competence and are therefore recommended for removal, with any necessary provision being made, instead, through an order under section 104 of the Scotland Act 1998.

Amendment 64 would add to the list of characteristics by which information in Public Health Scotland’s report is to be broken down. From a deliverability perspective, it is very prescriptive about the data that is to be collected and analysed. Setting those requirements out in primary legislation would tie limited resources to statutory obligations and would not allow statisticians to adapt to changing needs. Furthermore, new processes and investment would need to be included in order to support that level of data collection, development and reporting. I would make a similar comment on amendment 287.

From a delivery perspective, the requirements of amendment 116 would be resource intensive, particularly given the reporting requirements that are already addressed under section 26. It also seems that the amendment would require Public Health Scotland to provide clinical recommendations that are to be actioned by Scottish ministers. That appears to go beyond the organisation’s usual remit. Furthermore, it does not allow for Scottish ministers, in reviewing those recommendations, to make a final decision on whether they should be actioned based on the report or any other relevant information.

Amendment 275 would add significantly to the information that is to be provided by Scottish ministers under section 23A. It appears to be resource intensive and could potentially impact on the clarity and accessibility of the information that is to be provided. Amendment 276, which is also to do with the information that is to be provided under section 23A, would be similarly resource intensive. In addition, from a technical perspective, amendment 276 is very wide ranging and lacks clarity.

The Scottish Government’s view is that amendment 277 would be resource intensive and that, in establishing new processes and requiring the provision of an annual report setting out whether requirements have been met with regard to the duty to provide information, it would incur significant costs. By diverting limited resources to the reporting and monitoring mechanism, the amendment is also likely to have an impact on the ability to provide comprehensive information.

Amendment 278 would create a requirement for periodic detailed reviews to take place. Given the small numbers of people who are expected to undergo an assisted death in the early years, it might be difficult to balance the need for those reviews with the privacy of the individuals involved. Legal issues could also arise if the publication of a detailed assessment of a sample of cases were to result in the disclosure of private, personal data.

On amendment 279, the Scottish Government is concerned that the removal of the phrase

“in so far as known to Public Health Scotland”

from section 24(2) would risk Public Health Scotland failing in its statutory duty, should such information not be obtainable.

Mr Whittle has made his case and I have set out the Government’s perspective. It is for colleagues to decide. I have no further comment on Mr Whittle’s intervention. He makes a perfect reasonable argument.

Amendment 290 would impose requirements on Public Health Scotland in relation to obtaining information. From a legal perspective, it is not clear what remit Public Health Scotland would have that would require such information to be provided. I note that section 25 already provides for Scottish ministers to make provision by way of regulations about the provision of information to Public Health Scotland. Amendment 290 also provides that, where information that is required by section 24(2) cannot be obtained, the report must specify the information that is missing, explain the reasons why it cannot be obtained and set out the steps taken to obtain it. Although that goes some way towards addressing the concerns that I just raised in relation to amendment 279, it does so in a way that would put a further burden on Public Health Scotland’s resources.

The Scottish Government’s view on amendment 284 is that it would place additional data collection and reporting requirements on Public Health Scotland and other bodies in relation to safeguarding concerns, referrals and outcomes. That would require careful alignment with existing adult protection processes, information sharing arrangements and data handling requirements, including distinctions between substantiated and unsubstantiated concerns.

Amendment 288 would require the report submitted by Public Health Scotland to include an assessment of the availability, quality and distribution of health and social care services to persons who made a first declaration. Public Health Scotland does not currently collect data on the availability, quality and distribution of health and social care services in the manner requested. As such, new processes and investment would need to be included to support that level of data collection, development and reporting. There might also be a need for duties to be placed on persons holding such information—such as health boards—to provide it to Public Health Scotland. From a legal perspective, there might be a lack of clarity as to the meaning of “quality and distribution of health and social care services”.

Amendments 289, 291 and 295 would have significant cost and resource implications. On amendment 296, I refer colleagues to my comments on amendments 298 and 299 in the previous group regarding the difficulties of collating the required data on palliative care.

The Scottish Government has no comments on the remaining amendments in this group, other than the technical points that are to be found in the commentary.

I begin with a statement that I put on the record when we were discussing last night’s last group: I absolutely appreciate the sensitivities of the subject. I have absolute sympathy with Murdo Fraser. He has my deepest sympathy for the case that he puts on the record. However, I also ask members to be careful not to conflate suicide and assisted death. I point to the Scottish Government’s suicide prevention strategy, which sets out our vision to reduce suicide deaths in Scotland.

I note the points that Mr Stewart made. I understand the sensitivities and the very strong views that there are on the matter. I rest on the points that I opened with, which I hope reassures him.

I begin my substantive discussion of the amendments in the group with amendment 247, which would place a significant onus—and, possibly, cost burden—on anyone who produces materials about assisted dying for members of the public to provide information on which they might not have the required expertise.

The Scottish Government has significant concerns about amendment 248. From a legal perspective, the provision would create an offence in relation to the way in which assisted dying was referred to in public communication over and above the offence that is already in the bill. It has potentially very wide reach, as the communication that is intended for members of the public would only have to refer to assisted dying. It is questionable whether that is a proportionate measure.

From a technical perspective, it is not clear how amendment 248 would interact with the exemptions that are set out in section 21A(4).

From a delivery perspective, like amendment 247, amendment 248 would place a significant onus on anyone producing materials around assisted dying for the general public to provide the information as set out in the amendment, on which they may not have the required expertise. It could place a significant cost burden on the production of information for the general public around assisted dying.

The Scottish Government has no comment on the remaining amendments in the group.

10:00

I make no further comment on whether it should come before Parliament. That is for members to decide. I merely stress that the Government’s position is that it is unusual for guidance to come before Parliament. Normally, it is the responsibility of ministers to come forward with such things.