Draft Scotland Act 1998 (Modification of Schedule 5) Order 2026

Andrew Bowie Excerpts

Tuesday 10th February 2026 General Committees

[Andrew Bowie (West Aberdeenshire and Kincardine) (Con)]

It is a pleasure to serve under your chairmanship, Mr Twigg. I must start by saying that it is rather odd to rise in a Delegated Legislation Committee pertaining to an order that is significant to the functioning of the devolution settlement and that will affect constituents of mine, as well as those of my hon. Friends the Members for Gordon and Buchan and for Dumfries and Galloway, and to see such a lack of attendance from Scottish Labour MPs, with the notable exceptions of the hon. Member for Central Ayrshire and the hon. Member for Glasgow West (Patricia Ferguson), who is here in her capacity as the Chair of the Scottish Affairs Committee but cannot vote on the order.

I was planning to begin my contribution by asking why the Government had not taken up the advice of the Scottish Affairs Committee to have this debate on the Floor of the House. I wonder whether we can read into the absence of Scottish Labour MPs, and even the Scotland Office Whip, some lack of support for the Government’s decision and a worry from the Government about getting the order through. It speaks to a lack of respect for Scots, who will be affected by this change, that a Government with 37 Members of Parliament representing constituencies north of the border could not muster more than one to sit on this incredibly significant Committee.

Even in the Conservatives’ diminished capacity in the previous Parliament, when we had only six MPs on the Government side from north of the border, we would have been able to muster more than one to sit on the Back Benches of such an important Committee, considering changes to legislation that will have a direct impact on the lives of Scots. I wonder whether the Government might think about what that represents and how it looks to many Scots who will be wondering where their representatives are, given that the draft order pertains directly to their lives and how we move forward on the important issue of legislating for and regulating assisted dying in this United Kingdom. That is a question for the Government to examine their conscience on.

As you said, Mr Twigg, this is not a debate about the merits of the assisted dying Bill being considered by colleagues in the Scottish Parliament, nor indeed of the Bill going through its stages in the other place here in the Palace of Westminster. There will be strong, impassioned views on both sides of the wider debate, but the progress of the Member’s Bill in Holyrood is a matter for our Members of the Scottish Parliament. It is a conscience issue for those in my party and others.

The matter before us is not the political context of the draft instrument, but the modification order itself—its competence, the precedent it establishes and its consequences. I must say that His Majesty’s Opposition have grave concerns about the implications of this instrument. The order invokes the powers granted under section 30 of the Scotland Act 1998 to alter the devolution settlement, granting the Scottish Parliament new powers to legislate on medicines, medical supplies and poisons, which would otherwise be a reserved competence.

Let us be clear: this is a novel and in some ways unprecedented circumstance. Use of that mechanism to amend the devolution settlement is rare. The last application was in 2012, enabling the Scottish Government to hold the 2014 independence referendum. That came about as a result of months of discussion, ending in the Edinburgh agreement signed by both the Scottish and the British Governments. The draft order, however, is unprecedented in so far as it makes provisions to enable the consideration of legislation that is not sponsored by the Scottish Government, but a Member’s Bill.

The assisted dying Bill under consideration in the Scottish Parliament would, under clause 15, give Scottish Ministers the power to specify the drugs or medication to be used to assist a patient to die. As matters stand, that is within the reserved competence of medicines, medical supplies and poisons. The Member’s Bill under discussion in the Scottish Parliament requires clarity on that issue and a raft of other reserved competences, and it is entirely unclear how the Government intend to resolve them, hence the attempt with this modification order to tread a middle ground with a time-limited provision, as the Minister set out.

Clearly, the issue of the regulation of medicines is integral to the MSPs’ consideration of the debate on assisted dying. This draft legislation, however, seems to be a leap ahead into a hypothetical position. It lays the foundations for the implementation of a Bill that the Scottish Government and the UK Government are neutral on. The Member’s Bill is not Government-sponsored legislation and, given that the assisted dying Bill is still under way in the Scottish Parliament and further steps remain required if that Bill is to sit within the Scottish Parliament’s legislative competence, it seems a strange sequencing of events pre-emptively to order the limited devolution of such powers to provide for the circumstances were the Bill to pass in Scotland.

[Pete Wishart (Perth and Kinross-shire) (SNP)]

I always enjoy the hon. Gentleman’s comments, but I thought he was going to offer a solution. If not a section 30 order, in order for the Bill to be considered, what does he propose we do?

[Andrew Bowie]

We hold issue with the hypothetical nature of the draft order. Were the Bill to pass, it should then be for the UK Government to determine how we facilitate the devolution of such powers, so as to make it legal and competent within the Scottish Government’s purview. I do not think, however, that the right step is pre-emptively to devolve power ahead of a Bill being passed. That, I am afraid, runs the risk of setting a dangerous precedent for other issues and items, which may come about as a result of the Members’ Bill process in the Scottish Parliament—not least, perhaps, around issues pertaining to the constitution, which I am sure the hon. Member was not referring to in any way.

On accountability, proposed new paragraph 4A(1) in article 2 of the draft order outlines the scenario in which powers can be conferred on Scottish Ministers to use subordinate legislation to identify the relevant medicines, medical supplies and poisons, subject to approval by the Secretary of State. Proposed new sub-paragraph (2) provides for the conferral of power to the Secretary of State for the regulation of such medicines. In either case, the Secretary of State retains a veto power over the regulation of medicines. The Scottish Government would not truly be accountable for the implementation, and the Secretary of State does not directly influence Scottish Parliament Bills.

I understand the Minister’s argument regarding the coherent regulation of substances across the United Kingdom, and the implications for the Medicines and Healthcare products Regulatory Agency, but does she foresee any incompatibility between the consistent regulation of substances across the UK and the effective implementation of any assisted dying subordinate legislation that would identify medicines to be used for that purpose?

Section 30 orders have never previously been used to confer powers directly on a British Government Minister. The precedent the order establishes is one of piecemeal devolution and disintegration. Furthermore, the veto power conferred on the Secretary of State, and the resultant confusion in terms of authority and accountability, is an unprecedented power-sharing lay-out, representing a departure from the constitutional norm we have had since 1999.

The Opposition are absolutely not against the sovereign Government of the United Kingdom taking an increasingly active and interested role in the governance of Scotland, but this is not the mechanism nor the way to go about having the conversation. Indeed, it is yet another reason why this debate should be taking place on the Floor of the House and not in a Committee Room at 2.30 pm on a busy afternoon, with no Scottish representation—bar one.

Moreover, the limited approach does not resolve remaining inconsistencies that we would face should the Scottish Parliament’s assisted dying Bill pass—for example, the regulation of medical professions, and employment and industrial relations. There are significant concerns over the mechanisms that might be invoked to remedy the remaining competency challenges, namely through the section 104 order. 

The legislation poses a question that goes to the heart of issues surrounding devolution and Scottish Parliament competence. While we have consensus across the House that the issue of conscience regarding assisted dying in Scotland is now one for the MSPs in Holyrood to decide on, I cannot help but reflect on the truly disjointed situation the United Kingdom may land in if the Bill is passed in Scotland while defeated in England and Wales. What will the Minister and his Cabinet colleagues do in that situation? 

On that point, how does the Minister intend to preserve unity in the medical profession across the United Kingdom? How does she intend to preserve uniformity for those who conscientiously object within the medical profession more broadly? What was the reasoning behind selecting a section 30 order over a section 63 order? Does she have any concerns regarding the use of a section 104 order to resolve the remaining litany of inconsistencies that are not broached in this modification order?

The Opposition will be voting against this mechanism today for the reasons I have set out. I must once again put on record my dissatisfaction—and that of the official Opposition—that this incredibly sensitive and significant debate is taking place with very little interest or representation from Scottish Labour MPs, and is not being given time on the Floor of the House.

--- Later in debate ---

[Kirsty McNeill]

It is required and desirable because we believe the integrity of the medicines regulatory regime should be maintained across the United Kingdom. We are trying to strike a balance. We want to give the Scottish Parliament the ability to confer the power to Scottish Ministers to identify in this case, and in only this case, that substances and devices that could be used in assisted dying are able to be so used if that is the will of the Scottish Parliament. Of course, that is provided that that is done by way of subordinate legislation made with the agreement of the Secretary of State. The order also provides that the Scottish Parliament may confer powers on the Secretary of State to regulate such substances and devices by subordinate legislation. In our view, they are separate matters and we are trying to find a balance between the two.

Turning to the questions raised by the Chair of the Scottish Affairs Committee—

[Andrew Bowie]

Will the hon. Lady give way?

[Kirsty McNeill]

Let me just put on the record my great thanks to the Committee and its Chair, my hon. Friend the Member for Glasgow West, for their scrutiny. I hope I will cover all the points that she raised.

--- Later in debate ---

[Andrew Bowie]

I also put on the record my thanks to the Committee and the role that it played in providing scrutiny to the draft statutory instrument before us today. The Minister has not explained why there are so few Scottish Labour MPs in the room this afternoon—the question I asked at the very beginning and thrice in my comments. It cannot be that, aside from the hon. Member for Glasgow West and the Minister, there is a lack of interest in this SI, given the important implications of the Bill and how law is delivered in Scotland—so might the Minister provide an explanation?

[Kirsty McNeill]

The provisions in this order are incredibly narrow and time-limited. It is appropriate that it is done in a delegated legislation environment. Members are doing all manner of business of the House and, indeed, the business of their constituents.

[Andrew Bowie]

The Minister is being very generous with her time. As she referenced, I have been through numerous Committees with Conservative and Labour Ministers. It has never been the case that all but one of the Members on the Government Benches have been from outside Scotland. We are considering amendments to the Scotland Act 1998. Surely she does not expect us to believe that the 35 Scottish Labour MPs are so busy that they could not find time to come along to debate this important issue before us today.

[Kirsty McNeill]

I am here to lay out the Government’s view on the Scotland Act order. I am not the diary secretary for my colleagues—I do not think the hon. Member would expect me to be. We are here to debate this order.

The Chair of the Scottish Affairs Committee and indeed other members of this Committee have raised repeatedly a question that I hope I addressed in my opening remarks. But let me reiterate the view about why a section 30 and not a section 104 order is the appropriate way to get done what we need to get done today. This is for two reasons. A section 104 order cannot be invoked until a Bill has had Royal Assent. Likewise, it cannot be used to confer regulatory powers, which is specifically what the Scottish Government asked for in the intergovernmental conversations that we had. The Scottish Government have noted that the details of what a future section 104 order might contain are still being worked through, so it would not be possible for us to say in advance what our response to a request for a section 104 order would be, because no such request has been forthcoming.

To clarify for the Committee, in correspondence to the Scottish Parliament, the Scottish Government have stated:

“'It is likely that some, if not all, of the relevant provisions will need to be handled through a section 104 Order which, as outlined previously, will mean that they need to be removed from the Bill to be dealt with in that way. However, consideration is being given to whether it might, in some cases, be possible to amend the provisions to limit the scope of the powers so that they can be more clearly understood to be for purposes that are within the legislative competence of the Scottish Parliament.”