Assisted Dying: How Keir Starmer could push Scottish bill onwards

After 25 years of the Scottish Parliament, devolution has of late been tested to its limits.  

While normally-warring parties reached consensus on legislation meant to modernise gender recognition processes and boost bottle recycling, both of those measures were ultimately blocked by Westminster. 

Despite much public consultation, committee scrutiny and parliamentary debate, the Gender Recognition Reform Act and the Deposit Return Scheme (DRS) resulted in a legal logjam. Found to have overstepped Scottish competency and wavered in areas reserved to Westminster, the interventions brought new focus on the limitations of Holyrood’s powers and encouraged much reflection on the functioning of devolution itself.  

While the Scottish Government’s initial response was to criticise its London counterpart for what it termed an “attack” on devolution, that tone has since softened and there is, it seems, an acknowledgement that no further ground can be gained on either matter until – and if – the UK Government moves forwards with its own plans. A UK-wide DRS will apparently be introduced by October 2027, while Labour has said it will “simplify” gender-change processes under the Gender Recognition Act, but no timetable has yet to emerge, leaving campaigners in Scotland frustrated by what they see as a lack of progress in both areas. 

Liam McArthur MSP | Alamy

Those two rows weren’t the first of their kind – there was the fall-out over the incorporation of the UN Rights of the Child in Scots law, plus another related to local government – but they were far louder and more ill-tempered than their predecessors. And when Lib Dem MSP Liam McArthur brought forward a new attempt to legalise assisted dying in Scotland, it was against that background of fractious, angry debate and ill-will, causing some to question whether our political system was up to handling another contentious matter. 

But it’s just possible that this emotive issue could bring the parliaments together – despite warnings by health secretary Neil Gray that some elements of McArthur’s proposals would be, like the shelved legislation, “outside the legislative competence of the Scottish Parliament”. 

In a letter to the Health, Social Care and Sport Committee, Gray said that’s down to provisions allowing Scottish ministers to specify “a drug or other substance as an ‘approved substance’” which could be used by terminally ill adults to end their lives, subject to eligibility.  

McArthur, whose bill is the third such attempt to bring about a law change in this area in Scotland, has said both the Scottish and UK governments would have to work together on the matter. And the UK Government has said it will consider the detail of the bill “in the usual way at the appropriate time”. 

But while we were latterly so used to legal and policy clashes between the SNP-led Scottish Government and the Conservative UK Government, the general election which elevated Labour to power in Westminster means that could now change. And on this issue, Keir Starmer, who leads an administration with a majority of a whopping 174 MPs, has already indicated his support for reform.  

While a bill on assisted dying was defeated in the Commons in 2015, Starmer backed it and last year he said MPs should be given the chance to vote again on the matter. “I personally do think there are grounds for changing the law,” he said. “Traditionally this has always been dealt with through a Private Members' Bill and a free vote, and that seems appropriate to me.” 

It just so happens that 15 of the 20 MPs who were successful in the latest ballot for Private Members’ Bills belong to Starmer’s party. They include three Scottish MPs – Scott Arthur, Tracy Gilbert and John Grady – and Labour members dominate the top of the draw, taking up the positions deemed most likely to result in success. Kim Leadbeater is in first place, with Clive Lewis in fourth. 

It’s not yet known what members will present to Commons colleagues, but it is to be noted that one Labour MP, 11th-placed Jake Richards, said “the time has come” for reforms to assisted dying laws. And, given the noises already made by Starmer, it is likely that any such proposal will be given the government support necessary to progress. Indeed, the Mail on Sunday reported that MPs could be voting on the matter before Christmas. 

There is, of course, a diversity of opinion on the matter in the UK Parliament and indeed within the Cabinet, as in Scotland. But the willingness to bring forward debate on the matter will be encouragement to McArthur. 

McArthur's proposal has drawn cross-party support | Alamy

A public consultation on his proposals drew more than 14,000 responses, with three quarters of them supportive of the draft bill. Concerns were of course raised, covering the ethics and practicalities of such a major law change, as well as its implications for society. These are concerns many MSPs and MPs will share and, with much discussion and scrutiny to go, there remains no certainty of rule change in either Scotland or the rest of the UK. Still seeking support, McArthur has yet to take his bill past stage one of the parliamentary process, let alone stage three, and the selected MPs will not present the first readings of their Private Members’ Bills until 16 October.  

But the potential for somewhat parallel processes raises not only the possibility of a different tenor of debate on this important and sensitive subject, but also the prospect that consensus could be reached between governments to prevent the brakes being slammed on after the passage of yet another act of the Scottish Parliament. 

A matter of life and death such as this deserves the most careful and diligent handling. Its treatment will truly be a test for our governments and our systems.