MSPs clashed over Assisted Dying Bill – but should it ever have been debated?

By Dr Mary Neal - Posted on 16 March 2026 

Days before the final vote, MSPs clashed over the Assisted Dying Bill’s legislative competence

Last week, MSPs debated 324 amendments to the Assisted Dying for Terminally Ill Adults (Scotland) Bill ahead of the final vote on the bill on 17 March. On Wednesday, during one of these lengthy debates, a row erupted in the chamber over the fact that key provisions in the bill were having to be stripped out – just days before the final vote – because they were beyond the powers of the Scottish Parliament.

A heated exchange

Brian Whittle MSP – a member of the Health, Social Care and Sport Committee (HSCSC) that led the scrutiny of the bill at Stages 1 and 2 – expressed his anger that key parts of the bill were being removed at such a late stage due to legislative incompetence, and complained about a “disgraceful” lack of engagement by the government during Stages 1 and 2. First Minister John Swinney MSP “firmly rejected” Mr Whittle’s accusation, saying his government had “pointed out for some considerable time the issues of legislative competence, and we have sought means of resolving them”. Mr Swinney then turned to the member who introduced the bill, Liam McArthur MSP, saying “Mr McArthur introduced a bill to parliament that did not recognise these issues [of competence].” In response, Mr McArthur pointed out that prior to its introduction, the bill had been certified as legislatively competent by Presiding Officer Alison Johnstone MSP.

Stephen Kerr MSP intervened on two separate occasions to seek clarity over why the bill had been determined by the Presiding Officer to be within competence, when the government had subsequently determined that it was not. Responding to Mr Kerr’s questions, the Presiding Officer appeared uncomfortable, and seemed to be reading from a scripted statement that described the duties of the Presiding Officer in relation to certifying competence, but shed absolutely no light on why she formed the view that this bill – which has turned out to suffer from such significant competence issues – was, in fact, competent. As Deputy First Minister Kate Forbes MSP had just reminded the chamber, the two areas where provisions are now having to be stripped from the bill – regulation of medicines, and employment rights – have long been known to be reserved matters. In other words, the bill’s competence issues have been clearly visible all along, and no members (including, by implication, the Presiding Officer) can reasonably have been unaware of them.

The competence issues have always been obvious

In fact, criticism that the government failed to engage with the HSCSC regarding the bill’s competence issues is misplaced. During Stage 1, the Cabinet Secretary for Health, Neil Gray MSP, wrote to the HSCSC on 30 September 2024, and gave oral evidence on 28 January 2025. On the latter occasion, confirming what he had already stated in writing, Mr Gray said, “to summarise the Government’s views, we believe that the bill in its current form is outside the legislative competence of the Scottish Parliament.” He cited provisions dealing with the regulation of medicines and the regulation of the health professions, which are both reserved matters.  Later, at Stage 2, Mr Gray wrote to the convenor of the HSCSC on 5 September and 16 October 2025, reiterating the government’s view that parts of the bill were not legislatively competent, and updating the committee on the steps being taken by the Scottish and UK governments to address the competence issues. As the First Minister remarked in the chamber on Wednesday night, the government has “engaged substantively” over these issues “for a long time”, and they should not be a “surprise” to members.

Others had also alerted the committee to the fact that the bill was not legislatively competent. In my own oral evidence I raised the issue of competence in relation to the conscience provision (now removed as incompetent, but not before time and energy were expended at Stage 2 on debating and amending a provision that should never have appeared on the face of the bill in the first place). Another witness in the same session discussed competence more generally, and was clear that work would need to be done to bring the bill within the competence of the Scottish Parliament. Later during Stage 1, I wrote to the HSCSC together with two academic colleagues expressing serious misgivings about the bill’s competence. We argued that, rather than the competence issue affecting isolated parts of the bill, it affects the whole bill in a fundamental way. We urged the HSCSC to address these questions in its Stage 1 Report. In the end, we received no reply to our letter, and the Stage 1 Report did not engage meaningfully with legislative competence issues.

The HSCSC seems not to have engaged as fully as it might have done with the concerns raised by witnesses at Stage 1. On the other hand, the committee was being assured by the Cabinet Secretary that the Scottish Government was engaging with its UK counterpart to address the bill’s competence issues. In fairness to both the HSCSC and the government, they have been grappling with a bill that, arguably, should never have reached Stage 1.

It is undoubtedly very regrettable that – partly because of its competence issues, and partly because of serious and valid concerns about safety – a bill of this consequence was still undergoing radical surgery just a few days before MSPs will be invited to vote it into law. As Russell Findlay MSP, who supports assisted dying in principle, posted on X on Wednesday, “[t]his rushed approach to life-and-death legislation is shambolic and dangerous. It is NOT how a parliament should work.” With many observers following this bill closely in Scotland and beyond, the fiasco over legislative competence makes an unedifying spectacle and has the potential to damage the parliament’s reputation.

Unanswered questions

Whatever happens on 17 March, the McArthur Bill has exacted a high price both in and outside of parliament. MSPs, parliamentary staff, stakeholders, witnesses and others have all been obliged to devote significant time and energy to the bill since it was published in March 2024 – time and energy that could have been devoted to other pressing matters.

In light of this, I return to Stephen Kerr’s unanswered questions in the chamber on Wednesday night: how are we to account for the fact that this bill was allowed to proceed at all? What induced the Presiding Officer to certify it as competent, especially given what has unfolded in the two years since? Why did her view of the bill’s competence differ so radically from the view of the Scottish and UK governments?

Undoubtedly the Presiding Officer will have formed her view after taking legal advice. In light of the heated disagreement in the chamber this week between a member of the HSCSC, the First Minister, and the Member in Charge – and the uninformative response from the Presiding Officer – and given what this bill has cost Scotland in terms of parliamentary time and external input, there is now an overwhelming public interest in understanding the decision to allow it to proceed. 

Lawyer-client communication is normally exempt from disclosure, but exceptions can be made where a strong public interest exists, as it does in this case. At the time of the bill’s introduction, both the Presiding Officer and Mr McArthur made Statements on Legislative Competence, without which the bill would not have proceeded. Given all that has transpired concerning the bill’s competence since March 2024, the Scottish electorate has a right to understand why this bill was wrongly thought to be competent by both the Presiding Officer and Mr McArthur.

The Scottish Parliament Corporate Body should now formally release the legal advice that informed the Presiding Officer’s view, and Mr McArthur should likewise release the advice he relied on in making his own statement. Given the exchange on Wednesday night, and with the reputation of the parliament at stake, the public interest in disclosure