This report sets out the Health, Social Care and Sport Committee's consideration of the following Statutory Instrument (SI) at its meeting on 20 January 2026 - The Scotland Act 1998 (Modification of Schedule 5) Order 2026 [draft].

The instrument, laid in draft, is subject to the affirmative procedure – which means it cannot be made unless it has been approved by a resolution of the Parliament. In this case, the instrument has also been laid before the UK Parliament and requires approval by both Houses as well as by the Parliament.

The minutes of the Committee's meeting have been published on the Committee's webpages. The Official Report of the meeting is also available on the Parliament's website.

The instrument has been laid under Section 30 of the Scotland Act 1998, with the order providing for a limited exception to the list of reserved matters in Schedule 5 of the Scotland Act 1998, in respect of the identification and regulation of substances and devices for use in assisted dying.

This order is being made in the context of the Assisted Dying for Terminally Ill Adults (Scotland) Bill which is currently being considered by the Scottish Parliament

This Order enables the Scottish Parliament (subject to certain limitations) to:

• confer a power on the Scottish Ministers, by way of subordinate legislation made with the agreement of the Secretary of State, to identify substances and devices for use in assisting a terminally ill adult to voluntarily end their own life, 

• confer a power on the Secretary of State to regulate such substances and devices, by way of subordinate legislation. 

The Policy Note states:

This is a technical and time-limited action which is being taken to enable the Scottish Parliament to further consider legislation on assisted dying, in its current Parliamentary session, with an understanding of how matters relating to the identification and regulation of substances and devices to be used within an assisted dying service can be addressed. These matters have been identified as matters which are currently outside the competence of the Scottish Parliament.

In relation to impact assessments, the Policy Note concludes:

A full Impact Assessment has not been prepared for this instrument because this is a constitutional measure that concerns the conferral of legislative competence on the Scottish Parliament.

As part of a more general update on legislative competence considerations in relation to the Assisted Dying for Terminally Ill Adults (Scotland) Bill, the Cabinet Secretary for Health and Social Care provided the following supplementary information about the contents of the Order: 

Subsequent discussion with the UK Government, taking into consideration the changes to the Bill during Committee’s Stage 2 considerations, mean that the section 30 Order also includes provision around medical devices, which may relate to the reserved matters of product standards, safety and liability (section C8 of Schedule 5 of the Scotland Act 1998) and medicines, medical supplies and poisons (section J4 of Schedule 5 of the Scotland Act 1998).

The DPLR Committee considered the instrument on 13 January 2026 and reported on it in its 6th Report, 2026.

In relation to this instrument, the DPLR Committee agreed to write to the lead committee and the Scottish Government with further questions about the Order and to highlight that, in addition to this Order, further subordinate legislation would also be expected in the UK Parliament in relation to the Bill, and that the approach proposed may result in some scrutiny challenges for the Scottish Parliament.

The DPLR Committee’s letter to the Health, Social Care and Sport Committee concluded:

The issues that you may wish to explore are: 

1. “What factors are being taken into account in the choice of solution to the legislative competence issues the Scottish Government sees in the Bill, and, in particular, why are only some of the legislative competence issues the Scottish Government sees in the Bill being addressed by the section 30 Order, while others are being left to a section 104 Order, which this Parliament can't formally scrutinise?

2. “Are there other possible solutions that would involve greater scrutiny in the Scottish Parliament?

3. “What consideration is being given to those?

4. “How does the Scottish Government propose to keep the Scottish Parliament as involved and as informed as possible as these matters are further considered, including in relation to a section 104 Order process?

The Health, Social Care and Sport Committee is required to consider and report on the instrument.

Prior to the meeting on 20 January and to help support scrutiny, the Health, Social Care and Sport Committee wrote to selected stakeholders with a request for written comments on the instrument and received three responses.

In its response, the Faculty of Advocates concluded:

The mechanism in the Order appears workable, and we are content with it.

The General Pharmaceutical Council also responded, reiterating its general position on assisted dying and its role as a regulator for the pharmacy profession.

The Law Society of Scotland, in its response, raised concerns that:

The Section 30 order is very narrowly framed, both in terms of its time-limited nature, and the requirement that regulations made by the Scottish Ministers obtain the consent of the Secretary of State...

The Society flagged that the requirement for Secretary of State consent to Scottish regulations "raises questions of precedent” around conferral of functions and constitutional considerations; and that:

... the rationale for dealing with some issues via a Section 30 order and others via a Section 104 order, remains unclear”.

The Committee also wrote to Liam McArthur in his capacity as the Member in charge of the Assisted Dying for Terminally Ill Adults (Scotland) Bill to request his written views on the instrument. In his response, Mr McArthur concluded:

I encourage all members to support this draft Order, as it will, if agreed by both parliaments, help to ensure that our Parliament can fully debate the Bill and proposed amendments at stage 3, and vote on whether to pass the Bill, with the knowledge that, if passed, the Scottish Parliament will have the necessary powers to give full effect to the end-of-life process in the Bill. The draft Order, if passed, will ensure that Scottish Ministers will be able to regulate to approve from a range of substances and medical devices for use in assisted dying.

The Committee took evidence from the Cabinet Secretary, and supporting officials on the instrument at its meeting on 20 January 2026. During the evidence session, the Cabinet Secretary outlined that the Scottish Government is committed to engaging with the UK Government to try resolve the legislative competence issues identified within the Assisted Dying for Terminally Ill Adults (Scotland) Bill. The section 30 Order is the result of that work, although he did note that it only goes some way towards resolving the issues and a section 104 order or other measures will still be needed to fully address the remaining competence issues - though highlighted that a section 104 order can be laid in the UK Parliament only after a Bill receives Royal Assent.

The Cabinet Secretary further stated that the section 30 Order will give the Scottish Parliament limited competence to legislate in relation to the identification and regulation of substances and devices for use in assisting terminally ill adults to voluntarily end their own lives. He also stated that conferral of competence is time limited, in that it extends only to provision contained in an Act of the Scottish Parliament that results from a Bill passed before 7 May 2026. Adding to this, he stated:

That means that it (the Order) can apply only to Mr McArthur’s Assisted Dying for Terminally Ill Adults (Scotland) Bill. That was felt by both the Scottish Government and the UK Government to be appropriate, given that both Governments are neutral on the issue of assisted dying and do not, therefore, feel that it would be right to pre-empt any future legislation brought to the Scottish Parliament on the issue, should the Bill not pass the Stage 3 vote.

The Cabinet Secretary also outlined that although the Order will enable the Scottish Parliament to confer power on the Scottish Ministers, this must be with agreement of the Secretary of State. He further added:

I recognise that these are slightly unusual provisions. However, the UK Government was extremely keen that UK ministers retain a role in the overarching regulation of medicines and devices, which is a reserved matter, as they felt that that would be the best way of ensuring continued regulatory consistency across the UK.

Members then queried the section 104 order mentioned by the Cabinet Secretary, asking whether the Scottish Government has an assurance from the Secretary of State that it will be laid in the UK Parliament, regardless of what happens to Kim Leadbeater MP's Bill. The Cabinet Secretary responded by stating:

... my understanding ... is that a section 104 order would require to proceed regardless of whether similar legislation was going through the House of Commons or the House of Lords and, indeed, whether that particular legislation passed. This is a separate process that is based on the Scottish Parliament’s processes.

He further emphasised that:

Discussions on the terms and what they will look like are still on-going. However, the fact that elements will go into a section 104 process means that assurances will be given about the UK Government’s role thereafter. The discussions on those elements have not concluded, however, so it would be unfair of me to state categorically the position right now.

Members further queried, in relation to discussions on the section 30 and section 104 orders, whether it is the intention to try reduce any potential divergence in policy areas between the Scottish Parliament and UK Parliament Bills. The Cabinet Secretary emphasised that the Scottish Government remains neutral on the Scottish Bill, and that any questions on policy coherence would be best addressed by the Member in charge of the Bill (Liam McArthur).

Following the evidence session, the Minister moved motion S6M-20226:

That the Health, Social Care and Sport Committee recommends that the Scotland Act 1998 (Modification of Schedule 5) Order 2026 [draft] be approved.

The motion was agreed to.