HANSARD
Scotland Act 1998 (Modification of Schedule 5) Order 2026
- Motion to Approve
- 6:53 pm
- That the draft Order laid before the House on 17 December 2025 be approved.Relevant document: 48th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)
- I thank the noble and learned Lord for his amendment and his engagement with me on this matter. I understand the concerns he has raised. However, the Government believe the approach they have taken is appropriate and in keeping with the devolution settlement.As with all the Scotland Act orders we have considered since the start of this Parliament, this is the result of close collaborative working between the UK and Scottish Governments. The order before us will be made under Section 30 of the Scotland Act 1998, which provides the power for the legislative competence of the Scottish Parliament to be altered. Specifically, it enables modifications to be made to Schedule 4 or Schedule 5 to the Scotland Act 1998.Orders made under this provision are subject to the affirmative procedure in both the UK and Scottish Parliaments. The order was considered by the Scottish Parliament and considered in the other place earlier today. I welcome the opportunity to set out to the House the purpose of the order. I will explain what it does, what it does not do, and why it is the best way of proceeding with this complicated matter.The Assisted Dying for Terminally Ill Adults (Scotland) Bill is a Member’s Bill introduced by Liam McArthur MSP and is currently before the Scottish Parliament. It seeks to create an assisted dying regime in Scotland. I am keenly aware of the sincerely and strongly held views on this topic. I would like to emphasise that the UK Government remain neutral on the matter of assisted dying. It is a matter for MSPs in the Scottish Parliament to determine whether there should be an assisted dying regime in Scotland.The Scottish Government identified areas of this Bill as being outside of legislative competence and, as such, requested a Section 30 Scotland Act order from the UK Government. This was in respect of substances and medical devices which may be used for an assisted dying regime in Scotland. They requested a Section 30 order specifically as they considered that such provisions are a fundamental element of the regime the Bill seeks to introduce. The UK Government considered the request carefully and, following engagement with the Scottish Government, concluded that making a narrow, time-limited Section 30 order would be the most appropriate action.
- 7:00 pm
- The view of the Government is that, properly analysed, the first matter—the regulation of medicines—is fundamental to the operation of any assisted dying regime. In contrast, the other two matters are not fundamental: our analysis is that they can be dealt with once the Bill has passed, if indeed it does. The relevance and importance of the distinction is that it is the assessment of this Government and the Scottish Government that it is necessary for MSPs to know all the fundamental elements of a regime before they can responsibly vote for it. This means that they need a mechanism that allows clarity on the reserved issue before the Bill passes.
- It is with that context in mind that I turn to the detail of the Section 30 order before this House. The first matter to be addressed is why we have brought forward a Section 30 order, as opposed to other Scotland Act orders. The Government consider all requests for Scotland Act orders carefully: they look at what, if any, provisions under the Scotland Act may be appropriate. This, of course, includes Section 104 as well as Section 30.
- Section 104 is routinely used to make provision in consequence of an Act of the Scottish Parliament: that is, once a Bill has Royal Assent. In this instance, it was not considered an appropriate option due to the limitations of the power. Section 104 cannot be used before a Bill achieves Royal Assent. The request from the Scottish Government was to act before Royal Assent, reflecting the Scottish Government’s view that the provisions were fundamental to the operation of the Bill—a view that we share. Moreover, Section 104 cannot be used to create regulation-making functions. Section 30 was considered appropriate as it enables the Scottish Parliament to introduce regulation-making powers within the narrow scope of the order. In essence, Section 30 was, in this instance, the only means of achieving both of those outcomes.
- The second question the Government have been asked is why the order does not include the further subject areas that the Scottish Government have identified as being outside competence. The Government’s view is consistent: it is a matter for the Scottish Parliament to ensure that legislation is within competence. While Section 30 orders have been used occasionally in the past as Bills have proceeded through the Scottish Parliament, it is not regular practice and nor would we expect it to be. We have agreed to a narrow order in these particular circumstances to allow for clarity on a fundamental aspect of the Bill.
- Consequential legislation is, however, routinely taken forward, and it is rightly considered by this House. Such consequential orders cover matters that cannot be legislated for by the Scottish Parliament, and these are typically Section 104 orders. The UK Government’s position is that consequential legislation is the appropriate means of addressing or considering reserved provisions in most circumstances. Fundamentally, as I have set out, the Government are not seeking to substantially alter the devolution settlement via this order. Therefore, it is appropriate that the Section 30 order is narrow and addresses the key questions asked of it, and that the remaining matters are left to consequential legislation in due course.
- This brings me to the third matter, which is on the orders specifically: the likelihood of other Scotland Act orders being brought forward in due course. As I have mentioned already, we are conscious that further matters of legislative competence have been raised. The UK Government have agreed to work with the Scottish Government to resolve any remaining issues through consequential legislation. I remind the House that it is for the Scottish Government to make a request for any future order; it is not the responsibility of this Government to ensure that they legislate within competence. As the House might expect, constructive discussions have already taken place.
- Having set out the Government’s position on why this order has been brought and why it is limited to the matters it contains, I turn to the regret amendment tabled by the noble and learned Lord, Lord Keen. The amendment is, in essence, a view that the remaining matters that may give rise to legislative competence issues ought to have been included in the Section 30 order. In considering this amendment, I draw the House’s attention to the following points.
- First, the Bill in question is only at stage 2 in the Scottish Parliament and still requires to complete stage 3. It can still be amended, and, as such, its final form cannot be known. As we might expect in these circumstances, the Scottish Government have noted that the details of what any future Section 104 order might contain are still being worked through. Indeed, they have also indicated that consideration is being given to whether it might be possible to amend some of the provisions to limit the scope of the powers so that they can be more clearly understood to be for purposes within the legislative competence of the Scottish Parliament.
- In all these circumstances, including these matters in the Section 30 order would have been premature, standing that the Bill itself is still in a state of flux, and potentially unnecessary, given that it may be possible to deal with these matters in such a way that they remain within the competence of the Scottish Parliament. Including these other matters would have extended the scope of the devolved settlement by devolving more powers than were required to allow MSPs to vote on a coherent scheme.
- Of course, the order before the House today is the order that the Government have agreed to take forward with the Scottish Government on the matter of substances and devices. That is the matter on which the Government are seeking the approval of the House. In seeking that, I recognise that there is interest in the existence of schemes across the UK in view of the legislation being considered by the UK and Scottish Parliaments. This is a separate question from the one before the House today. The question today is whether the House agrees that the proper functioning of the devolution settlement means that the UK Government should ensure that the Scottish Parliament can create an overall framework for medicines and devices to be used in an assisted dying regime, should it decide to do so. I beg to move.
- Amendment to the Motion
- Moved by
- At the end to insert “but that this House regrets that the draft Order is drawn too narrowly, such that the modification of Schedule 5 to the Scotland Act 1998 would be insufficient to render the Assisted Dying for Terminally Ill Adults (Scotland) Bill fully within the legislative competence of the Scottish Parliament.”
- My Lords, I am obliged to the Minister for engaging with me on this topic. To be clear at the outset, we are not concerned with the merit, or otherwise, of the content of the legislation in question. However, this raises a somewhat technical issue with regard to the devolved settlement.I begin with a general résumé of where we are regarding the devolved settlement. Schedule 5 to the Scotland Act 1998 contained expressed reservations to the United Kingdom Parliament. They were very carefully and deliberately identified as areas where it was appropriate that there should be UK-wide legislation, rather than devolved legislation, touching upon certain fundamental and important matters.The Minister has mentioned medicines and medical devices, as contained in paragraph J of Schedule 5, but that does not sit alone. The regulation of all the health professions and the medical professions is expressly reserved in Schedule 5, as is the matter of employment law, for the very simple reason that uniformity within the United Kingdom was thought important and to take precedence over the desire for devolved competence.There is a provision in Section 29 of the Scotland Act which makes it clear that, if the Scottish Parliament passes legislation that is not within devolved competence, it is not law. It is as simple as that. The competence of the Scottish Parliament can, of course, be extended by Section 30, and we have heard reference to a Section 30 order. That is an unusual mechanism, last used more than 10 years ago in respect of the referendum on independence. Moreover, it is not a mechanism that has ever been used before in respect of a Member’s Bill. Within the Scottish Parliament, what we understand as a Private Member’s Bill is referred to as a Member’s Bill. In addition, within the Scottish Parliament, when referring to a Bill, one refers not to clauses but to sections; I hope that noble Lords will bear with if I adopt the appropriate references in dealing with this matter.
- 7:15 pm