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Scotland Act 1998 (Modification of Schedule 5) Order 2026 [Draft]
Our third agenda item is consideration of one affirmative instrument: the draft Scotland Act 1998 (Modification of Schedule 5) Order 2026. This draft statutory instrument requires approval by resolution of the Parliament before it can become law. In this case, the instrument also requires approval by both houses of the United Kingdom Parliament before it can become law.
The purpose of the order is to provide for a limited exception to the list of reserved matters in schedule 5 to the Scotland Act 1998, in respect of the identification and regulation of substances and devices for use in assisted dying. The order has been laid in the context of the Assisted Dying for Terminally Ill Adults (Scotland) Bill. I welcome Liam McArthur, the member in charge of the bill, to our meeting.
The order will enable 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, and to confer a power on the secretary of state to regulate such substances and devices by way of subordinate legislation.
The Delegated Powers and Law Reform Committee considered the order at its meeting of 13 January 2026 and made no recommendations. However, it agreed to write to this committee and to the Scottish Government with further questions about the order.
We will now have an evidence session on the order with the Cabinet Secretary for Health and Social Care and supporting officials. Once we have had any questions answered, we will proceed to a formal debate on the motion.
I welcome to the committee Neil Gray, the Cabinet Secretary for Health and Social Care, and, from the Scottish Government, Gerald Byrne, head of constitutional policy; Nicki Crossan, assisted dying shadow bill team leader; and Ailsa Garland, principal legal officer. I invite the cabinet secretary to make a brief opening statement.
Good morning. Thank you for inviting me to speak about the draft Scotland Act 1998 (Modification of Schedule 5) Order 2026, and for considering the order in such a timely manner.
As the committee will know, after Liam McArthur’s Assisted Dying for Terminally Ill Adults (Scotland) Bill passed the stage 1 vote last May, the Scottish Government committed to engaging with the UK Government to try to resolve the legislative competence issues identified with the bill. Work has taken place at pace to fulfil that obligation and to lay the order ahead of the Scottish Parliament’s stage 3 proceedings, so that members are free to make decisions based on their own convictions, and those of their constituents, rather than on whether the bill is outwith competence.
This section 30 order is the result of that work, although it must be noted that it goes only some way towards resolving those issues, and a section 104 order or other measures will still be needed to resolve the remaining issues with the bill. The details of that order are still being worked through, bearing in mind that a section 104 order can be laid in the UK Parliament only after a bill receives royal assent.
It was with that in mind that we opted to focus our attention on the section 30 order in the first instance, given that it also needs to be laid in the Scottish Parliament and is, therefore, time bound by the dissolution of Parliament ahead of the Scottish election later this year.
The section 30 order will modify schedule 5 to the Scotland Act 1998, which defines reserved matters for the purposes of that act. It 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.
The 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. That means that it 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.
Although the order will enable the Scottish Parliament to confer a power on the Scottish ministers to identify substances or devices by way of subordinate legislation, the committee will note that that must be with the agreement of the secretary of state. Similarly, the order will enable the Scottish Parliament to confer a power on the secretary of state to regulate such substances or devices by way of subordinate legislation.
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.
It should be noted that, although the section 30 order will make the necessary provision for the Scottish Parliament to legislate on the identification and regulation of substances and devices, at this time, the bill includes provision only for the identification of substances in section 15(8). It would need to be amended to include provision for the identification of devices, an aspect that was introduced into the bill at stage 2, and for the regulation of both substances and devices.
The inclusion of provisions on the regulation of substances and devices is to allow the Medicines and Healthcare products Regulatory Agency—MHRA—to have a role, and the committee will note that Kim Leadbeater MP’s Terminally Ill Adults (End of Life) Bill also includes such provisions. However, I must be clear that exactly what that role would look like has not been determined.
I turn back briefly to the section 104 order, although I recognise that that is not the focus of today’s session. As members may have noted from my letter of 16 December, proceeding by way of a section 104 order would require the Assisted Dying for Terminally Ill Adults (Scotland) Bill to be amended to remove provisions, which would then be dealt with through the 104 order after royal assent, should the bill pass. That removal of provisions would be necessary to bring the bill within competence before the stage 3 vote, as, were the bill to be passed outside competence, there is a strong likelihood of its being referred to the Supreme Court. With that in mind, MSPs should be similarly mindful of the need to ensure that no new provisions are added to the bill at stage 3 that would take it further outside legislative competence.
I recognise the challenges that this poses for MSPs, particularly given the importance of the areas being discussed for removal—namely, provisions relating to the regulation of health professions and to employment rights and protections—but this Parliament has a duty to ensure that any bill passed is within competence.
I hope that the committee has found that information helpful, and I welcome any questions.
Thank you very much, cabinet secretary. I will bring in Sandesh Gulhane.
I declare an interest as a practising NHS GP.
Thank you very much for your statement, cabinet secretary. I understand that the Scottish Government is neutral on the bill. It is really important that we recognise that what is before us today is not about whether you are for or against assisted dying; it is about enabling the will of the Scottish Parliament to be enacted, should the bill pass. With that in mind, I have a few questions.
With regard to the section 104 order, if we pass the bill at stage 3, do you have an assurance and a guarantee from the secretary of state that it will be laid in the UK Parliament, regardless of what happens to Kim Leadbeater MP’s bill? That action would allow Mr McArthur’s bill to progress.
I thank Dr Gulhane for his questions, and for the preamble. He is absolutely right that proceeding with the committee’s consideration of the section 30 order does not change the Government’s position of neutrality. It is about enabling the Parliament to make its decision based on the merits of the issue and the conscience of individual MSPs. Earlier in the process, we committed to engaging to ensure that that would happen in the best way that we could possibly manage.
The discussions are clearly based on an element of negotiation between Governments. We are talking about areas of reserved policy that are, at the end of the day, the responsibility of the UK Government, and it is for the UK Government to decide which elements are contained in a section 30 order and which are contained in a section 104 order.
Dr Gulhane is also correct that my understanding—officials may correct me if I am wrong—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.
Has the UK Government indicated that it will do that if we pass the bill?
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.
Given the position that we are in currently with the section 30 order and potential section 104 orders, are you and your officials content that the process will provide everything that we need, should the bill pass at stage 3 and become law?
Yes, although, as I say, the section 104 order elements are slightly more complicated because some form of amendment will require to be made to the bill for it to meet the legislative competence requirements. I am, however, certainly content that the section 30 order elements will give the Parliament the ability to legislate in the areas that the order covers. The section 104 process has to run its course and, regardless of the conclusion of those discussions, there will still be a requirement for amendment to the bill in order for it to be passed as competent.
My final question is about unintended consequences. Medications and devices will change with time as medical expertise improves. Do such orders give us the flexibility to change medications and devices as required? Are we also content that the orders will apply only to medication and devices in connection with assisted dying and nothing else?
The answer to your second question is yes.
On your first point, the role of the MHRA will be important. It regulates and approves medications and devices for use within the health service, so its role in being able to determine new approaches will be important to the flexibility that you mentioned.
The Scottish Parliament cannot scrutinise any potential section 104 order in the same way as it can the section 30 order. What does the Scottish Government propose to do to keep the Parliament as involved and informed as possible, should any section 104 order be laid?
As I said in my response to Dr Gulhane, the decision on whether elements of the bill come under section 30 or section 104 is for UK ministers. However, for our part, I commit to continuing to keep the committee, the Parliament and Mr McArthur as up to date as we can about progress with the discussions and what the outcome of them means for the progress of the bill. That is probably as much as I can say at this stage.
10:15
Good morning, cabinet secretary. I have a point of clarification, I suppose. Are the discussions on section 30 and section 104 orders about trying to limit any potential divergence, should both bills—the one in Scotland and the one in England and Wales—be passed? Is it your intention to try to reduce any potential divergence in policy and any inherent issues that might arise?
First of all, Mr Whittle will understand that I am neutral on Mr McArthur’s bill. I have met Kim Leadbeater, but that interaction was not, for me, about policy coherence. It is for Mr McArthur to lead on that. That said, I know that the discussions with UK ministers on the routes that have been applied with regard to the decisions on the section 30 order and the role of the secretary of state have been about providing for some form of policy coherence.
There are various scenarios at play here: Ms Leadbeater’s bill could fall, Mr McArthur’s bill could fall or they could both proceed. We do not know the outcome in that respect; each Parliament has an independent process to go through, and interaction between the two processes is very limited.
Again, it is for Mr McArthur and Ms Leadbeater to answer the majority of the question on policy coherence, but as far as discussions on legislative competence are concerned—and it is an issue that the Scottish and UK Governments have been discussing—I set out in my opening statement that the secretary of state has been involved in order to provide coherence with regard to the regulation of medicines and devices.
Good morning, cabinet secretary. I think that you have already answered my question, because you have said that discussions, or dialogue, are on-going with the UK Government, and that they will continue until votes are taken and decisions are made about the bill going through the UK Parliament and the bill in the Scottish Parliament. I am just interested to hear a wee bit more about the discussions that have taken place and how things will proceed until decisions are made here in Scotland and then again at Westminster.
I thank Ms Harper for her question, because it gives me the opportunity to set out, again, that these discussions are being had at pace. Colleagues who have some familiarity with section 30 orders that have been laid in the past, and, indeed, the predictions about the time that these things can take, will be aware that the process has moved at pace. It has been very constructive, and I am very grateful to UK ministers and officials, as well as my officials, for the work that has been done to progress these matters at pace. I expect a similarly constructive approach to be taken to the section 104 process, and that I will be able to provide an update as soon as possible to the committee, and to all members, on the conclusion of the section 104 discussions.
Thanks.
I echo the comments that the cabinet secretary has just made. I said as much at last week’s First Minister’s question time, but I am genuinely grateful to the cabinet secretary, his counterparts in the UK Government and officials for expediting this process at pace. As the cabinet secretary has said, there were many predictions about how long the process would inevitably take, and it is to the credit of the UK and Scottish Governments that they have managed to reach this agreement.
The points that Gillian Mackay has raised with regard to the transparency of the section 104 process are probably those of most concern to many colleagues, and it would be helpful if the cabinet secretary could confirm that my understanding of section 104 orders, which is that they are a fairly routine mechanism for dealing with such issues, is his understanding, too. Will he also reiterate the importance of ensuring that, as we progress to stage 3, MSPs are kept fully informed, on a timely basis, of the progress of those discussions with the UK Government?
I thank Mr McArthur for those questions. I will bring in Mr Byrne in a second to talk about the constitutional elements and how familiar or routine the section 104 process is, but I absolutely give the commitment that Mr McArthur seeks. When it comes to transparency, we have attempted to furnish the committee, Mr McArthur and MSPs with as much information as we can. Indeed, we did so all through the stage 2 process, when we gave a critique of amendments and of elements of the bill as it stood, and we will endeavour to do what we can and provide as much information as we can in relation to Mr McArthur’s question about the section 104 process.
Perhaps Mr Byrne can provide further illumination of the precedent here.
Perhaps “routine” is not the right word, but section 104 orders are certainly not an unusual part of the legislative process. If an act of the Scottish Parliament will affect reserved matters and there needs to be some consequential provision as a result, or if a bill can be brought fully into effect only by changing reserved matters—which is the category that we are talking about here—it is normal for the Governments to discuss the need for a section 104 order as that bill progresses through Holyrood.
That is what has happened in this case, although it has happened alongside a section 30 order. As has already been observed, both Governments have worked closely to address the legislative competence issues that both have identified in the bill as it stands. That process is now well under way.
Thank you—that was very helpful.
I just want take this opportunity to reiterate the question that I posed to the First Minister. I absolutely respect and understand the rationale for the Government’s position of neutrality, but as we saw through the stage 2 process, there is a growing expectation among colleagues, irrespective of the position that was taken on the bill at stage 1, that the Government will engage more actively in the amending process, even if it is only around technical amendments to ensure the workability of any legislation that the Parliament passes.
I know that there have been on-going discussions in Government on that. Again, it would be helpful—certainly for the member in charge, but also for the committee and other MSP colleagues—to have clarity on the level of engagement that the Government is going to be committed to at stage 3.
Mr McArthur is correct. Discussions are on-going, and it would be my expectation to advise colleagues as soon as I am able to on the Government’s intention with regard to our approach to stage 3.
Thank you.
I thank the cabinet secretary for his evidence.
We now move to agenda item 4, which is the formal debate on the instrument on which we have just taken evidence. I remind the committee that officials may not speak in the debate.
Cabinet secretary, I ask you to move and speak to motion S6M-20226.
Motion moved,
That the Health, Social Care and Sport Committee recommends that the Scotland Act 1998 (Modification of Schedule 5) Order 2026 be approved.—[Neil Gray]
I have nothing further to add, convener.
I have no indication from committee members that they wish to contribute to the debate. Mr McArthur, do you wish to put anything further on record?
No, thank you, convener.
Motion agreed to.
That concludes consideration of the instrument.
At our next meeting, we will take evidence from the Cabinet Secretary for Health and Social Care on the Scottish budget for 2026-27. That concludes the public part of today’s meeting.
10:23
Meeting continued in private until 10:52.
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