The serious, emotive and divisive topic of assisted dying is subject to significant debate, as well as attempts to change the law. Scotland saw a vote against the Assisted Dying for Terminally Ill Adults (Scotland) Bill 2024 on 17 March 2026. This Member’s Bill is not to be mistaken with the Terminally Ill Adults (End of Life) Bill 2024 – a Private Members’ Bill currently before the UK Parliament, with its own devolution issues, raised by the Scottish and Welsh Parliament. This blog post focuses on the Scottish Bill and the arguments raised concerning the power of the Scottish Parliament to legislate on assisted dying.
The journey did not however start with the Assisted Dying (Scotland) Bill 2024. In 2005, a proposal for a Bill was introduced at Holyrood to allow capable adults with a terminal illness to access the means to die with dignity. However, it didn’t gain the required support (similar Bills introduced around that time in the UK Parliament didn’t succeed either). Later, the End of Life Assistance (Scotland) Bill 2010 sought to permit assistance to be provided to persons who intended to end their lives, and the Assisted Suicide (Scotland) Bill 2013 sought to legalise assisted suicide for people with terminal and life-shortening illnesses and conditions over a decade ago. However, both bills in Scotland were voted down in free votes at Stage 1.
In the UK we are reminded the law is “different north and south of the border”. Unlike the position in England & Wales and Northern Ireland, there is no specific statutory offence on assisted suicide in Scotland (paragraph 43 in Ross v Lord Advocate [2016]). The position is addressed, instead, via the law of homicide (murder or culpable homicide) and the principle of causation. Fast forward to the present and the Assisted Dying (Scotland) Bill sought to permit the Scottish Parliament to make it lawful for health professionals to provide assistance to eligible terminally ill adults voluntarily requesting assistance to end their life by self-administered means.
What is devolved and reserved?
All the devolved legislatures can make laws in the area of health, including in relation to assisted dying (as a devolved and transferred power in the case of Northern Ireland). However, the Assisted Dying (Scotland) Bill raises issues in relation to the legislative competence of the Scottish Parliament under section 29(2) of the Scotland Act 1998. It has been argued the Bill would have been incompatible with Articles 2, 14, and 8 of the ECHR. In addition, it has been argued the Bill as a whole, as well as provisions within it, interacted with specific matters reserved to the UK Parliament on the regulation of the health professions (in Schedule 5 of the Scotland Act 1998).
This was made clear by the Scottish Government (paragraph 17) and raised at Stages 1 and 2 of the Bill in the Scottish Parliament (detailed here) concerning: sections 4(5)(a) and 6(6)(a) of the Bill on the proposed power of Scottish ministers to determine, via secondary legislation, the qualifications and experience of medical professionals providing assistance to end life (Section G2); section 7(2)(c) of the Bill regarding a medical professional’s assessment of a declaration made by someone to request assistance in the ending of their life (Section G2); section 15(8) of the Bill which sought to provide Scottish government ministers with the power to identify and regulate, via secondary legislation, substances and medical devices for use in assisted dying, which relates to product standards, safety and liability, as well as medicines, medical supplies and poisons (Sections B2, C8 and J4); section 18 of the Bill in relation to a conscientious objection provision allowing a medical professional the right to opt out of their involvement with the assisted dying process (Section G2) – including employment protections in this context, as the Bill was argued to relate to industrial and employment relations (Sections G2 and H1).
Some interesting features
In a novel drafting move, section 22 of the Assisted Dying (Scotland) Bill included from its inception a clause limiting the effect of the proposed Act if any provisions in, or made under, the Bill related to certain reserved matters. It was even proposed the provision include all reserved matters, but this was not agreed. The explanatory notes (paragraph 52) and policy memorandum (paragraph 7) clarified any such provisions would have had no effect. It has been noted this means the Bill was “designed to pass into law with or without the provisions relating to reserved matters”. Indeed (as also pointed out here), it could be because of this provision that the Bill was declared to be within the competence of the Scottish Parliament.
Where proposed legislation relates to matters reserved to the UK Parliament (note the approach confirmed in the Lord Advocate’s reference [2022]), an Order (statutory instrument) under section 30(2) of the Scotland Act 1998 can temporarily or permanently increase or limit the powers of the Scottish Parliament by amending the list of matters reserved to the UK Parliament in Schedule 5. Such an Order was required prior to a vote being taken on the Bill at Stage 3. Despite concerns, an Order under section 104 of the Scotland Act 1998 was also considered necessary, because the Bill would have required changes to other laws relating to reserved matters. This hadn’t been agreed before the Bill was voted against and would need to have been passed by the UK Parliament, but only once the Bill had become law which Schedule 7 makes clear.
While section 22 remained in the final version of the Bill, taken together, sections 30 and 104 effectively rendered it obsolete, which was debated (pages 18 – 22).
In turn, The Scotland Act 1998 (Modification of Schedule 5) Order 2026 proposed by the UK Government set out a limited exception to the list of reserved matters which would have facilitated the Scottish Bill in implementing assisted dying, had it passed. This exception would have applied until 7 May 2026 – the date of the devolved and local elections in the UK. It would have given the Scottish Parliament in the current (but not a future) parliamentary session the ability to confer powers on Scottish government ministers (by way of secondary legislation – with the agreement of the UK Secretary of State) or the UK Secretary of State, to identify and regulate substances and devices for use in assisting a terminally ill adult to voluntarily end their own life. In questioning its necessity, the Law Society of Scotland highlighted this was only the second occasion another section 30 Order has included a time-limited conferral of competence. There have been 17 Section 30 Orders to-date. The other – to include such a time-limited conferral – related to the 2014 Scottish independence referendum (precluding a referendum after the end of 2014). This was a significant constitutional development between governments, but time-limited conferrals of competence have received relatively little comment or consideration. Should a similar Bill return to the Scottish Parliament at a later date, this would merit greater reflection.
Statements on legislative competence
It has also been questioned whether the Assisted Dying (Scotland) Bill should have ever been allowed to proceed through Parliament – the argument being it lacked legislative competence. The Scottish Parliamentary Corporate Body, a public authority, can advise a Presiding Officer and the Non-Government Bills Unit can advise an MSP seeking to introduce a Member’s Bill. The Scottish Parliament’s Guidance (on Private Bills) acknowledges some limits on legislative competence may be subject to debate. However, the guidance makes it clear (at paragraphs 2.12 and 2.16) a Bill can only be introduced if it is stated to be within the powers of Parliament, required under section 31 of the Scotland Act 1998.
The guidance also recommends legal advice is sought ahead of time. However, if the Presiding Officer deems the Bill to be outside of Parliament’s powers, the promoter of the Bill can still (but doesn’t have to) introduce the Bill (paragraph 2.72). There has been a call for any legal advice which was relied upon or which informed the view of the promoter of the Bill and the Presiding Officer when the Bill was declared to be within the legislative competence of Parliament to be released. What may follow on from this remains to be seen – we saw a decision of the Scottish Information Commissioner following a request for the provision of correspondence relating to the drafting of the Assisted Dying (Scotland) Bill in October 2025.
The end of the Bill in Scotland?
Ultimately, and after an impassioned debate, the Bill was voted down in the Scottish Parliament and did not complete Stage 3. As Parliament will be dissolved on 9 April, and as it is a Private Members’ Bill, it cannot be carried over – but an identical Bill could be introduced in the next Parliament as the guidance clarifies (paragraph 5.96), but only at Stage 1. The MSP responsible for introducing and promoting the Bill stated he would not reintroduce the Bill in the current Parliament and it seems there would need to be a significant sea change for efforts to resume in the Scottish Parliament after May.
Cross-border issues
Cross-border issues, whether potential, actual or purely hypothetical, remain an underexplored issue in relation to the issue of assisted dying in the UK. The Assisted Dying (Scotland) Bill would only have applied to Scotland (given the territorial limit of Parliament under section 29(2) of the Scotland Act 1998). South of the border, section 57 of the Terminally Ill Adults (End of Life) Bill 2024 states the law would only apply to England & Wales, rather than the whole of the UK. The question of territorial limits and geographical extent is therefore relatively straightforward. However, more complex issues can arise. And, excluding Northern Ireland, a number of possibilities were and remain conceivable:
- Sottish and English versions of the Bills become law
- The English version of the Bill becomes law only
- A Scottish version of an Assisted Dying Bill becomes law, but the English version doesn’t
- Neither Bill passes
Potential issues stemming from these scenarios range from regulatory matters to different criminal law regimes and include: the applicable law; forum or jurisdiction challenges between the Scottish and English courts; regional differentiation, and; the (practical) effects, distinct from the (legal) limits, of proposed legislation in the UK, which are less constrained and predictable. For example, one could foresee, following the defeat of the Scottish Bill, there could be a situation where persons who are terminally ill and domiciled in Scotland could travel to England to seek assistance with ending their own life if the English version of the Bill becomes law. While the UK Supreme Court remains the ultimate arbiter on devolutions issues, cross-border issues, and how they might be approached in the UK, have the potential to give rise to “major assisted dying questions” and are “hugely underexplored”. Given the defeat of the Scottish Bill, or at the very least a significant setback for assisted dying in Scotland, it is time due consideration is given to these issues.
Looking ahead
Looking ahead to the upcoming devolved and local elections, health, social care and the NHS is reported to be the second most important issue facing Scotland. However, a future Bill is likely to require rethinking how best to approach legislating on assisted dying in Scotland (a parallel debate is currently reflecting on the process and choice of method regarding the UK Bill). Certainly, the issues regarding Private Members’ Bills and (disputed) claims of filibustering (see recent discussion here and here) have added to what is a complex area already. While not a new or novel idea elsewhere or in Scotland, a citizens’ assembly has even been suggested as an option moving forward. As the important debate on assisted dying is certain to continue, we await the policies and plans of a new Scottish Government in May 2026.
Richard Brant.
Dr Richard Brant is a Senior Lecturer in Law at the University of Law and a Barrister (unregistered).
The author would like to thank Dr Dexter Govan at The Constitution Society for helpful comments on drafts of this post.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.