Seòmar agus comataidhean

No, thank you, convener.

Motion agreed to.

I echo the comments that the cabinet secretary has just made. I said as much at last week’s First Minister’s question time, but I am genuinely grateful to the cabinet secretary, his counterparts in the UK Government and officials for expediting this process at pace. As the cabinet secretary has said, there were many predictions about how long the process would inevitably take, and it is to the credit of the UK and Scottish Governments that they have managed to reach this agreement.

The points that Gillian Mackay has raised with regard to the transparency of the section 104 process are probably those of most concern to many colleagues, and it would be helpful if the cabinet secretary could confirm that my understanding of section 104 orders, which is that they are a fairly routine mechanism for dealing with such issues, is his understanding, too. Will he also reiterate the importance of ensuring that, as we progress to stage 3, MSPs are kept fully informed, on a timely basis, of the progress of those discussions with the UK Government?

Thank you—that was very helpful.

I just want take this opportunity to reiterate the question that I posed to the First Minister. I absolutely respect and understand the rationale for the Government’s position of neutrality, but as we saw through the stage 2 process, there is a growing expectation among colleagues, irrespective of the position that was taken on the bill at stage 1, that the Government will engage more actively in the amending process, even if it is only around technical amendments to ensure the workability of any legislation that the Parliament passes.

I know that there have been on-going discussions in Government on that. Again, it would be helpful—certainly for the member in charge, but also for the committee and other MSP colleagues—to have clarity on the level of engagement that the Government is going to be committed to at stage 3.

Thank you.

I am grateful to you, convener, not least for up-ending your agenda to accommodate me.

I echo the petitioner’s sentiments. I do not think that I am betraying confidences by saying that she is the resident of an island that does not have a GP or a nurse—and there is no shop. Accessing services is often achievable only by taking the ferry to the mainland. I have long made the argument that, for islanders in Orkney—it is the same in Shetland, the Western Isles and on the west coast—ferries often perform the function that buses perform on the mainland and that, therefore, the extension of concessionary travel on buses for younger people as well as for older people, although very welcome, has led to islanders feeling that there is a growing inconsistency in the way that they are treated.

The Government is right, and is to be commended, for extending free interisland ferry travel to island residents under the age of 22. I made the case for that strongly, along with other colleagues for the Highlands and Islands, across parties. However, the Government now has a problem. As it has accepted the principle in relation to under-22s, it becomes more difficult for it to say that it cannot do the same for those over the age of 60.

I support a great deal of the principle and the argumentation behind the petition. I am pragmatic enough to understand that, in the time that is available between now and the end of the parliamentary session, it might be difficult to make progress. However, the argument will not go away. As I said, as a result of the more recent decision in relation to under-22s, the Government has helped to make the case that Claire Sparrow and other signatories to the petition are fairly making.

I will see you in the Conveners Group meeting shortly, Mr Carlaw.

I agree entirely with the point that Stephen Kerr makes. In relation to the five-year review, there is a balance to be struck about the timeframe within which sufficient data can be gathered to make informed decisions about the way the act is operating: whether it is performing as intended, who is accessing it and for what reasons, what the experience is of medical professionals who are engaged with the process, and so on.

There is always going to be a balance—I recognise that. However, alongside that, there is also the requirement for annual reporting of data. As I said earlier, future health committees can look at the data annually and take evidence on it as required. I think that it is problematic to set on a two-year time horizon a full-scale review of how the act is operating in practice, not least because of what we know from other jurisdictions that have implemented similar legislation, which is that the number of people who access it in the early years is relatively small. It takes a number of years for the number to increase, and then even out.

There is a balance to be struck in relation to when we carry out the review. However, I have concerns that doing so after two years would leave a dataset from which some erroneous conclusions could be drawn about the way the act is operating in practice. As I said, the review also sits alongside the annual reporting requirements, which provide sufficient safeguards to address the concerns.

I understand the point that Pam Duncan-Glancy has made, which is why I am supportive of the assessments being carried out. However, the assessments will not necessarily speak to the specific circumstances of any individual who is going through the process. As I have said, it is incumbent on ministers to ensure that all the requisite steps are being taken in relation to aligning health, social care, social work and other services to ensure that the provisions under the bill can be safely provided for and delivered. On that basis, I am content to support amendment 54 and consequential amendment 64 but urge the committee to resist amendments 57 and 61.

On Jackie Baillie’s amendment 55, as with amendment 57, I note that the Scottish Government has made some points in relation to data gathering responsibilities and resource implications; I share those concerns and do not support the amendment.

On Pam Duncan-Glancy’s amendment 258 and consequential amendments 280 and 284, although I am fully supportive of anything that would assess and support the social care sector, I question whether that is best placed in my bill, the primary purpose of which is to allow mentally competent, terminally ill eligible adults to voluntarily choose to be provided with assistance by health professionals to end their lives. Again, the Scottish Government has identified the need for new processes and investment, and investment in supporting social care is almost certainly better targeted elsewhere.

With regard to amendment 284, which would prevent the bill being commenced before an assessment of social care services had taken place, I refer members to the previous concerns on such provisions in the bill and the comments that I have just made in response to Pam Duncan-Glancy’s intervention.

On Stuart McMillan’s amendments 259, 281 and 285, if the Parliament passes the bill after rigorous, thorough debate and amendment—which has been anything but rushed—I cannot see the case for holding a costly and time-consuming referendum on the act. As I recall, there was no call for such a referendum during stage 1. It is not a feature of our legislative process and would come at considerable cost while also delaying the ability of those terminally ill adults who meet the criteria and wish to access the choice of an assisted death from doing so.

If this is any consolation to Mr McMillan, I point him and members of the committee to the recent Scottish Parliament information centre briefing, which stated that

“public opinion polls and surveys”

since 2005

“have generally shown that a majority of adults in Scotland and the rest of the UK support a change in the law to allow assisted dying for someone who is terminally ill.”

On Miles Briggs’s amendments 21, 22 and 23, the bill provides for the collecting and publishing of data. It is crucial that the assisted dying process be transparent and that relevant anonymised data be made publicly available. The collected data will help to inform understanding about the impact and effect of the bill. Amendment 21 might aid transparency and provide useful information, but it and amendment 22 appear not to link to the data-collecting requirements under the bill, which provide that declarations, doctor statements, cancellations and the final statement after a person’s death are recorded in the adult medical records. That is the information that is then drawn on by Public Health Scotland, as per section 24, for the purposes of the reporting provisions of the bill.

I am not opposed to amendment 22, but I note that it might place added burdens on healthcare professionals to research for themselves or even patients to assess what is available. There are some questions to consider, such as how quality would be judged and how healthcare professionals would investigate the distribution. Medical records might be useful in providing some of that information. Although I am not opposed to them, I feel that amendments 21 and 22 would benefit from further refinement ahead of stage 3.

I turn to amendment 23. Section 27 of the bill provides that the Scottish Government

“must, as soon as reasonably practicable”

after a review period, review and report on the operation of the act. That period is set at five years, beginning with the day on which section 1 of the act comes into force. Amendment 23 sets out that the report must include “the Scottish Ministers’ assessment” of matters relating to palliative care services, as described.

As I have stated, the bill provides for the collecting and publishing of data that is focused on the assisted dying process. That will assist the Scottish ministers in assessing how the legislation is operating. As for the last part of amendment 23, it is not clear how the methodology would show a direct correlation—that is, the impact of assisted dying on palliative care—given so many variables. That point has also been picked up—

I am sorry, Mr Kerr.

My view is also informed by the experience in other jurisdictions. Two years would be too short for the first review, and a recurring review every two years thereafter would be excessive, particularly given the bill’s requirement—as I said—for annual reporting data. I do not think that a perpetual state of review is in anyone’s interests.

With regard to Brian Whittle’s amendment 202, I can see that the requirement in it could pose a number of difficulties. For example, who would carry out such a review, on the basis of what information, and from whom? I know that Brian Whittle has been rightly concerned to ensure input from, and the confidence of, medical professionals. However, I worry that the amendment may work against the latter.

In relation to Stephen Kerr’s amendment 130, I have already set out the purpose and scope of the provision in my bill that requires a five-year review on the operation of the act. I also refer members to my earlier comments in relation to amendment 57.

Murdo Fraser’s amendment 203 appears consequential to amendment 189, which has already been debated. Again, I refer members to my earlier comments.

On Stephen Kerr’s amendments 131 and 132, I observe that the bill does not prevent the Scottish Government from consulting any organisations or individuals that it considers relevant in undertaking the five-year review, and I would expect it to do so. As such, I do not believe that those amendments are necessary.

With regard to Daniel Johnson’s amendments 14, 15, 271 and 272, I am wary of adding a sunset clause to the bill, which could impact on both the engagement of health professionals and the views of some people who wish to request assistance to end their own lives. For example, people may feel that they need to make a more hurried decision based on a belief that assisted dying may be available for only a time-limited period. Evidence from other jurisdictions, such as California, has indicated that sunset provisions in assisted dying legislation are not helpful and end up being further amended or, indeed, removed—as has been the case in California this year.

Sunset clauses are not a feature of our legislative process, except in very limited circumstances that often relate to issues that are felt to be time-limited and over a short period. That is demonstrably not the case in this instance. I believe that it is imperative that the legislation be subject to detailed review, and I have provided for that to happen after five years. That is in addition to annual reporting, as well as any additional scrutiny that Parliament wishes to undertake.

I note that Mr Johnson’s amendments offer a range of timeframes for such a sunset clause—five, 10 and 15 years. The first of those timeframes would certainly be far too soon, but even the longer time periods appear problematic for a mechanism that is, so far, confined to matters affecting Parliament as an institution, such as MSP pensions and lobbying—as the Scottish Government has observed.

I understand the rationale and accept that such provisions have been a feature of similar legislation elsewhere, but we would be interested in the views of committee colleagues on the principle. For much the same reasons, I do not support Stephen Kerr’s amendment 218, which includes a three-year sunset provision and might also conflict with the rolling review envisaged in Mr Kerr’s earlier amendments.

On Michael Marra’s amendments 280, 282 and 286, I note the Scottish Government’s view that, from a delivery standpoint, the timing of the review could be challenging. Should the bill pass, there would need to be a substantial implementation period and consultation with relevant stakeholders to develop the policy framework for the bill, during which the Scottish Government would undertake its own assessment of the financial impact of the bill. The review proposed by Mr Marra, therefore, could result in duplication and would be curtailed by decisions needing to be made on implementation. As far as I can tell, it is also out of step with the approach to any other piece of legislation, and it would have significant financial implications.

With regard to Paul Sweeney’s amendment—

I had a lengthy exchange with the Finance and Public Administration Committee on my financial memorandum about my understanding of costs. I know that the Government has taken a different view, and it is for the Government to explain its rationale.

Paul Sweeney’s amendment 269 appears to relate to amendments 245 and 275 and the issue of complications, which we debated in the previous meeting. Although those amendments were not agreed to, others were. If I can do more on that particular issue ahead of stage 3, I will be happy to work with Mr Sweeney on that.

Finally, Pam Duncan-Glancy’s amendment 287 seeks to delay the commencement of the act until legislation is introduced to remove charges for non-residential social care for terminally ill adults requesting assisted dying. I note and echo the Scottish Government’s concern that, from a legal standpoint, it is unusual to prevent provisions of any bill—other than provisions that come into force the day after royal assent—from being brought into force until some other action has been carried out. I do not believe that that would be appropriate in this instance.

With that, I bring my remarks to a close.