If politicians can’t, let citizens who will
The failure of the Assisted Dying Bill this week has revealed the limits of the power of parliament to be able to pass important legislation even without the constraints of the party system. For Bills such as these, perhaps power should be returned to the people.
This week saw the final debate and vote on the Assisted Dying for Terminally Ill Adults (Scotland) Bill. To my great sorrow and regret, the Bill failed, attracting only 57 votes for to 69 votes against.
In case after case, the quality of the debate was exemplary and stood far above what we usually see in the heckling and insult-slinging that we usually see in the Parliamentary Chamber. My wife and I watched the debate through an obviously overloaded server as politicians gave some of the most heartfelt and impassioned speeches of their careers. Green MSP Lorna Slater’s story of her own father’s assisted death and how much comfort it gave him and his family to die in a manner of his choosing had me in tears then and has me in tears for a second time now as I type this. So too, though, the politicians who spoke against the Bill are just as worthy. Those who spoke of their concerns, their fears, and their deepest convictions. These are all people who shone the brightest and best light on the Scottish Parliament and on our democracy.
There’s something in that. That this is the topic that that allowed that to come to be. I think it was precisely because it was a vote of conscience. One where the political parties were forced to leave the room and to leave the people behind the political masks behind to make the best decision that they could. I’ve seen that kind of politics happen before on other similar votes where the parties were no longer able to whip their members, but that this was a vote about personal choice and one where a major concern was one of coercion is, perhaps, deeply notable.
For myself, I’ve supported Assisted Dying or something like it for longer than I’ve been a political activist. It stems from a solid conviction about personal choice, freedom and that while our end is inevitable, the least we can do is have some measure of control over it. It comes from fear too. Fear of suffering and of leaving my loved ones to suffer once my own suffering ends, especially if that end lacks the dignity I would want for one of them.
There were principled and ideological objections – just as deep and as strong as my own – on the other and ultimately winning side. Rooted in faith, in the sanctity of life, in a desire to elevate the dignity of life before that of death or any of the other reasons mentioned. This article is not to gainsay that for anyone.
Other objections though were on more procedural grounds. Several politicians claimed that they supported the principles of Assisted Dying but objected to this Bill in particular. A fear that it would draw resources away from palliative care. Or the fact that part of the Bill touched upon Reserved Matters and that Westminster insisted on legislating those parts itself rather than devolving them to Holyrood. Or even fear that it would act as an excuse to not improve vital but underfunded parts of social care – an argument I well appreciate given Parliament’s failure to pass a National Care Service Bill.
Those procedural grounds speak to, quite frankly, either a lack of ability or a lack of will on the part of Parliament. Some of those principled supporters objecting in practice this week let perfect be the enemy of good. Given more time and attention, the ‘engineering problems’ of the legislation could surely have been worked out and some of them, surely, could have been worked out even after the legislation broadly passed – the issues reserved to Westminster still couldn’t have come into effect without MSPs voting to allow it and so further amendment would always have been possible. And I take well the point made by Green MSP Patrick Harvie that even in a world where we have a “perfect” care system, the need for Assisted Dying would still exist – the two problems should be solved together and as part of a greater whole rather than be seen in competition with each other.
This is now the third time that an Assisted Dying Bill has come to the Scottish Parliament only to be defeated – albeit by the narrowest margin of the three attempts. I don’t think that puts the issue away though. It is far too broadly supported by the general public to allow for that. I think it will have to come back, but it may be that the Parliamentary process is no longer the best means to make it happen.
One again. Some object to this kind of Bill on principled grounds and so the following is less for them than it is for the people who supported it in principle but objected to the specifics – especially if they objected but could not offer a constructive solution to those objections.
If politicians aren’t able to make decisions like this or to design competent legislation on issues like this despite several attempts, perhaps another way should be found. As we mentioned in our Daily Briefing this week, a big part of the problem is in Parliament not giving especially opposition politicians access to enough resources to design competent legislation while also developing a culture of even government politicians trying to ram through incompetent legislation despite having the resources to do otherwise.
Common Weal has long supported an Upper Chamber for the Scottish Parliament made up of a Citizens Assembly of the general public. We envisage it mainly as a scrutiny body – to do the job in Scotland that MSP Committees do here and that the House of Lords does down South. There’s no reason why it must be limited to that though. Other models are possible where upper houses have the power not just to shape legislation but to initiate it (The House of Lords can do this in certain circumstances).
“If politicians working within that system can take us only so far but citizens wish us to go further, then maybe it must be for citizens ourselves to finish the job.”
So perhaps Scotland could have a principle – or maybe even a Constitution article – that states that if the Lower House (Holyrood) fails to pass a Bill on a conscience vote three times but there is still a clear desire to debate the topic, then a second mechanism kicks in. Either the House of Citizens (if we have one) or a bespoke Citizens’ Assembly (if we don’t) takes up the issue. If they decide that the topic is not worthy of further discussion (perhaps because the ‘will of the people’ is against it on principled grounds after all) then so be it, but if there are grounds for further discussion then it becomes up to the Assembly to debate it out, to form legislation and to amend it into shape. As the Assembly is not beholden by the electoral timetable that the Lower House is (had the Assisted Dying Bill not been debated and voted on by next week, it would have fallen by default as Parliament breaks up for the elections) and because, presumably, these events would be rare in comparison to day-to-day legislation then maybe the Assembly can take as much time as it needs to get things right. Forums of policy experts and civic society should play key roles in guiding and shaping that legislation too to ensure that it is inarguably competent before it reaches a vote on the principle.
Once ready, a process again similar to that which takes place in Westminster but in reverse would happen. Holyrood – as the democratically elected body – would have the right to scrutinise and make technical amendments to the Bill but those amendments would themselves have to meet the approval of the Assembly to avoid the risk of the Parliament trying to block legislation with a “delete everything” amendment. Once both houses agree on the shape of the Bill, perhaps then final approval should go to a general public referendum.
I say that because sending a Bill to the Citizens Assembly to do instead of the politicians should mark the consequence of politicians failing to do the work behind making legislation work or from hiding behind technicalities to block legislation designed to improve the greater good. If they cannot shoulder the responsibilities of passing Bills of that importance, then perhaps it’s time for them to get the help of someone else who can.
This week showed Parliament at its absolute best. The work of Liam McArthur and his team to bring the Assisted Dying Bill this far was exemplary. The final debate was a model to follow even despite the return of the party whips for the other remaining legislation of this Parliament and beyond. That this wasn’t enough is deeply, deeply regrettable not just specifically in this case because I believe that people will now needlessly suffer between now and the eventual passing of a new Assisted Dying Bill at some point in the future. The debate also showed Parliament at some of its worst – politicians who could have done better stood in the way of this legislation simply to block it rather than trying to find a solution to solvable objections. I fear because of this, the Scottish Parliament simply hit the limit of what is possible to do within a representative democratic system.
If politicians working within that system can take us only so far but citizens wish us to go further, then maybe it must be for citizens ourselves to finish the job.
