That is the opinion of a barrister who believes the Assisted Dying for Terminally Ill Adults (Scotland) Bill, promoted as a members’ bill by Lib Dem MSP Liam McArthur, breaches the European Convention on Human Rights (ECHR).

Tom Cross KC, who is on the panel of counsel for the Equality and Human Rights Commission, states in a legal opinion prepared for The Christian Institute that the legislation contains inadequate safeguards for people with disabilities.

He says the bill is in breach of Article 14 of the ECHR, which contains the provision that everyone’s rights must be protected equally. He says it would unfairly discriminate against people with conditions such as autism, bipolar disorder and depression.

The 14-page critique of the bill states:

• “… without justification, it contains no adequate safeguard protecting the position of those with disabilities where suicidal ideation is more likely, and who are, because of that feature of their disability, more likely to express a wish to die.
• “By virtue of Article 14 of the ECHR, disabled persons enjoy special protection from discrimination, including in the enjoyment of the right to life under Article 2 of the ECHR.
• “In law, ‘very weighty reasons’ may be required to justify the same. Persons with disabilities of the above sort are in a significantly different situation from persons who do not have such disabilities, because they are … more likely to express the wish to die required under the legislation to be eligible to be assisted to die.
• “They are on that basis more vulnerable both than persons whose disabilities are not of that sort and than persons who are not disabled at all.
• “Accordingly, they are on well-established principles required to be treated differently under Article 14 unless there is justification not to do so.
• “However, without justification, the legislation fails to provide any adequate safeguard to address that greater vulnerability.”

In the opinion, co-written with barrister Ruth Kennedy, Mr Cross concludes: “We consider that, on that basis, an application for judicial review in respect of the legislation once enacted could result in a declaration that it is ‘not law’ for the purposes of section 29(1) of the Scotland Act 1998 (‘the Scotland Act’).”

Under the Scotland Act, if Holyrood passes legislation incompatible with the ECHR, a court can declare it “not law”, as the Supreme Court did when The Christian Institute challenged the ‘named person’ scheme in 2016.

Mr Cross states the bill fails to ensure people with certain disabilities are adequately protected and said: “There is clear and cogent evidence that particular disabilities are more likely to manifest in the sufferer expressing a wish to die, because they are more likely, by virtue of the disability, to experience suicidal ideation.”

The KC, who also wrote a legal opinion criticising the assisted suicide bill currently being scrutinised at Westminster, added: “The time for ensuring that the bill protects the most vulnerable is during its passage through Parliament. In our view, it is inadequate, on analysis, to adopt a ‘wait and see’ approach, by which the State may come to learn in due course whether rights of its citizens have been violated. By that time the bill will be law, and the horse will have bolted.”

The Christian Institute’s deputy director Simon Calvert said: “This stark warning about discrimination against disabled people embedded in this terrible bill must surely force MSPs into action – especially those who voted in favour of the bill at stage one earlier this year. Some allowed the bill to proceed to allow for more debate, or to see if it could be improved.

“But this document should set alarm bells ringing for them. It shows authoritatively that, among its many other fundamental flaws, the bill discriminates against disabled people in a very specific way by failing to provide for any assessment of whether what appears to be a settled wish to die is actually a manifestation of their condition.”