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The next item of business is consideration of Parliamentary Bureau motion S6M-20670, on approval of a statutory instrument.
Motion moved,
That the Parliament agrees that the Scotland Act 1998 (Modification of Schedule 5) Order 2026 [draft] be approved.—[Graeme Dey]
18:01
I rise to speak to the motion. This is a complicated matter involving an SI in relation to the Scotland Act 1998. I believe, as do some in the UK Parliament, that the SI is far too narrowly drawn and does not clarify which sections prevent the Assisted Dying for Terminally Ill Adults (Scotland) Bill from being within the competence of the Scottish Parliament. It would be helpful if the Scottish Government clarified which parts of the bill do not fall within the competence of the Scottish Parliament.
At this stage, I am happy to give way to the minister if he wants to come in. Okay—I see that he does not.
As someone who is vehemently against assisted dying, I cannot vote for the SI, as it seeks to allow Scottish Government ministers to identify suitable drugs to assist dying. There is huge concern about the efficacy and safety of any drugs used for assisted dying. As limited information is collected from clinicians and no drugs are available for the on-label purpose of assisted dying, I am not sure how ministers will make that decision.
I believe that this is a technical measure. On the wider procedural issues, does the member have a view on what options would be open to this Parliament in the hypothetical scenario where this Parliament passes the assisted dying bill but the UK Government, for whatever reason, does not step in to fill the legislative gaps that are left?
That may be beyond my exact knowledge of this matter. My point is that I do not see how the Scottish Parliament can pass a bill that we are not competent to consider. Aspects of the bill would need further UK Government clearance to be done in advance, and I have seen no evidence that that would happen.
For the three reasons that I have mentioned, I cannot support the SI, and I therefore encourage those members who share my concerns to abstain until the Scottish Government has clarified which parts of the assisted dying bill fall outwith the competence of the Scottish Parliament and how it will identify the drugs suitable for off-label use to assist in the bill.
18:04
Although I utterly respect Edward Mountain’s perspective on the matter of assisted dying, I gently remind him that we are seeking tonight not to pass the bill, but to facilitate some of the concerns that exist around it. If he will bear with me, I will go through the matter in a bit of detail, because he raises important issues. I hope that, by the time that I have finished, members will have a better understanding of those issues.
Thank you, Presiding Officer, for allowing me the opportunity to speak about the draft Scotland Act 1998 (Modification of Schedule 5) Order 2026. I am also grateful to the Parliament for choosing to consider the order in such a timely fashion.
As members know, following Liam McArthur’s Assisted Dying for Terminally Ill Adults (Scotland) Bill passing the stage 1 vote in May, the Scottish Government committed to engaging with the UK Government to try to resolve the legislative competence issues that were identified with the bill. That was to allow members to make their decisions on whether or not to pass the bill based on their own convictions and those of their constituents, rather than on whether or not the bill is outside the Parliament’s competence.
Work has taken place at pace to try to fulfil that commitment and to lay the order ahead of the Scottish Parliament’s stage 3 considerations. The section 30 order modifies schedule 5 to the Scotland Act 1998, which defines reserved matters for the purpose of that act. It gives 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 lives. 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, meaning only the Assisted Dying for Terminally Ill Adults (Scotland) Bill.
It was felt by the Scottish and UK Governments that that was 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 that is brought to the Scottish Parliament on the issue, should Mr McArthur’s bill not pass the stage 3 vote.
On a technical issue, if the bill was to pass at stage 3 and then a future Scottish Parliament wished to amend it further in this area, would that require a further section 30 order, or would we have that power for ever more?
We are now getting quite far ahead of ourselves, but I hope that I will cover that point as I go on. To be absolutely clear, the time limit applies only to the legislative competence of the Parliament, but that will not affect the future exercise of any regulation-making functions contained in the bill beyond 7 May 2026. The time limit is for passing the bill, not for making the regulations thereafter.
The order enables the Scottish Parliament to confer a power on the Scottish ministers to identify substances or devices by way of subordinate legislation. Members will note that that must be with the agreement of the secretary of state. Similarly, the order enables the Scottish Parliament to confer a power on the secretary of state to regulate such substances or devices by way of subordinate legislation.
It is recognised that those provisions are slightly unusual. However, the UK Government was keen that UK ministers retain a role in the overarching regulation of medicines and devices, given that this is a reserved matter, as it felt that that would be the best way of ensuring continued regulatory consistency across the UK.
I see that Edward Mountain wants to ask a question.
I thank the minister for giving way. I am trying to prompt him—I hope—to say whether this is the only bit of the bill that will require a section 30 order. Are there other bits that he knows of that cannot competently be delivered by the Scottish Parliament?
As I think the member knows, a further process—a section 104 order—would have to be undertaken further down the line. However, in the context of getting the bill into a reasonable place before we get to stage 3, this order is being taken forward, and it applies only in the way that I have outlined.
As I outlined to the Health, Social Care and Sport Committee during Scottish Government evidence on 20 January, although the section 30 order makes the necessary provisions for the Parliament to legislate on the identification and regulation of substances and devices, at this point in time, the bill itself 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, mention of which was first introduced at stage 2, and for the regulation of both substances and devices, so there would need to be an amendment introduced at stage 3, which can be done only within the legislative competence that this action provides. It is complicated, as I think that we agree.
The inclusion of provisions around the regulation of substances and devices is to allow the Medicines and Healthcare products Regulatory Agency to have a role in that. Members will note that Kim Leadbeater’s bill also includes provision for that. However, I must be clear that it has not yet been determined exactly what that role would look like. I am conscious of time, Presiding Officer. I will try to get through this.
It must also be noted that the section 30 order goes only some way to resolving the legislative competence issues with the bill, which was Edward Mountain’s point. There will still be a need for a section 104 order or other measures to resolve the remaining issues. The details of what such an order might contain are still being worked through. I note that the Scottish Parliament information centre has produced a useful explainer on this. As members will be aware, a section 104 order is laid only in the UK Parliament after a bill receives royal assent.
Will the minister take an intervention?
I will, if I can just finish my point.
With that in mind, the Government opted to focus its attention on the section 30 order in the first instance, given that it also needs to be laid in the Parliament. Therefore, it is time bound by the dissolution of the Parliament for the Scottish election later this year.
The minister may have covered it, but I would like to clarify the point. Before the Parliament votes on stage 3, will we have clarity on what will be in the section 104 order, so that we know what Westminster will do if the bill passes?
My understanding is that the discussions with the UK Government on what will be contained in that order are on-going, with a view to ensuring that the Parliament has as much sight on the issues as possible, which the member is seeking.
Will the minister take a brief intervention?
Do I have time, Presiding Officer?
We have gone somewhat over the time for this item. I will allow a little more time. Mr McMillan may intervene briefly.
As members of the Delegated Powers and Law Reform Committee will testify to, we have been told in the past that the dialogue related to a section 104 order does not tend to happen until after stage 3. However, the minister has just indicated that that clearly does not seem to be the case for this matter.
I touched on that. I am sorry if I have misled the Parliament. The details of what such an order might contain are still being worked through. Of course, the situation might arise at stage 3—although I hope it will not—in which other amendments would be lodged that would raise issues that would have to be covered by the section 104 order.
If we proceed by way of a section 104 order, that will require the bill to be amended to remove provisions that would then be dealt with through the order after royal assent, should the bill pass. The removal of provisions would be necessary in order to bring the bill within competence before the stage 3 vote as, if the bill is passed outside of competence, there is a strong likelihood of it being referred to the Supreme Court. With that in mind, as I said earlier, members may want to be mindful of the risks of new provisions being included through amendments at stage 3 that would take the bill further outside legislative competence.
The Scottish Government recognises the challenges that this poses for MSPs, particularly given the importance of the areas that are being discussed for removal: namely provisions related to training, qualifications and experience of health professionals; and employment duties, rights and protections. However, the Parliament has a duty to ensure that any bill that it passes is within competence, which is what we have set out to do.
The question on the motion will be put at decision time.
18:13
The next item of business is consideration of Parliamentary Bureau motion S6M-20671, on approval of a Scottish statutory instrument. I ask Graeme Dey, on behalf of the Parliamentary Bureau, to move the motion.
Motion moved,
That the Parliament agrees that the Animal Health (Fixed Penalty Notices) (Scotland) Regulations 2026 [draft] be approved.—[Graeme Dey
The question on the motion will be put at decision time.
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