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

Kirsty McNeill Excerpts

Tuesday 10th February 2026 General Committees

[The Chair]

Before I call the Minister, it may be helpful to hon. Members to say that this is not a general debate on assisted dying, and I will not allow debate in that context. To be clear, this is a draft order to provide a narrow exception to reserved matters to enable a Bill to confer powers, and so on and so forth. We must stick to this draft statutory instrument. I will not accept a debate widening into the issue of assisted dying.

[The Parliamentary Under-Secretary of State for Scotland (Kirsty McNeill)]

I beg to move,

That the Committee has considered the draft Scotland Act 1998 (Modification of Schedule 5) Order 2026.

It is a pleasure to serve under your chairship, Mr Twigg. The draft order was laid before the House on 17 December 2025. As with all orders made under the Scotland Act 1998 that we have considered since the start of this Parliament, the order is the result of close collaborative working between the UK and Scottish Governments. The order before us is made under section 30 of the Scotland Act, which provides the power for the legislative competence of the Scottish Parliament to be altered. Specifically, it enables modifications to be made to schedules 4 or 5 of the Scotland Act. Orders made under that provision are subject to the affirmative procedure in the UK and Scottish Parliaments. The order was considered by the Scottish Parliament, having been considered by the Health and Social Care Committee, and it will be considered in the other place.

I now turn to the purpose of the draft order. The Assisted Dying for Terminally Ill Adults (Scotland) Bill is a Member’s Bill introduced by Liam McArthur MSP. It is currently before the Scottish Parliament and seeks to create an assisted dying regime in Scotland. I am acutely aware of the sincerely and strongly held views on the topic, and I emphasise that the UK Government are 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 the Bill as being outside legislative competence and, as such, requested a section 30 Scotland Act order from the UK Government in respect of substances and medical devices, as they considered that such provisions are fundamental to the operability of the Bill. 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. That approach enables Members of the Scottish Parliament to consider the Bill in the Scottish Parliament with clarity as to how the matter of substances and devices that may be used for an assisted dying regime in Scotland could be dealt with, while protecting reserved matters such as medicines regulation. I emphasise that this is a limited and temporary change to the Scotland Act 1998.

To explain the time-limited nature of the draft order further, this section 30 order is time limited so as to reflect the circumstances of the Scottish Parliament Bill and the upcoming Scottish elections in May. The time-limited nature of the order reflects that, first, this is not a fundamental or permanent alteration to the devolution settlement and, secondly, it would not be appropriate to pre-empt consideration by a future Scottish Parliament. The time limit applies to the legislative competence of the Scottish Parliament but will not affect the future exercise of any regulation-making functions conferred by the Bill beyond 7 May 2026, should the Scottish Parliament determine to do so.

The draft order has been designed specifically to 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. In particular, I take this opportunity to thank members of the Scottish Affairs Committee for their carefully considered report on the SI.

On the question of whether the Scottish Parliament would be able to amend or repeal the regulation-making powers under any Act in a future Scottish parliamentary Session—if the Bill is passed and contains regulation-making powers authorised by section 30 order—it would not be possible for the Scottish Parliament to amend or repeal those regulation-making powers in a future Session. The time limits within the section 30 order mean that that would no longer be within the Scottish Parliament’s legislative competence to do. Subject to the Secretary of State’s approval, it would instead be able to revoke or amend the regulations that had been made under those powers.

I am aware that the content of the draft order has prompted queries about the approach that the Government have taken: first, on why the Government have taken forward a section 30 order and not, for example, a section 104 order; secondly, on the scope of the draft order and the matters that are not included; and, thirdly, on the likelihood of other orders being brought forward under the Scotland Act 1998. A Committee scrutinised the draft order and the Scottish Affairs Committee considered it, and they both raised those points. I take this opportunity to thank them for their scrutiny and to provide answers, as follows.

The Government consider all requests for Scotland Act orders carefully. They look at what, if any, provisions made under the Scotland Act 1998 may be appropriate. That includes section 104 of the Act. Section 104 is routinely used to make provision in consequence of an Act of the Scottish Parliament—that is to say, 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 was to take action before, because in the Scottish Government’s view, the provisions were fundamental to the operation of the Bill.

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 Government therefore believe that their approach is appropriate in the circumstances.

On the second point, the Government have been asked why the order does not include 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 the legislation is within competence. Although section 30 orders have been used occasionally in the past as Bills have proceeded through the Scottish Parliament, it is not a regular practice nor would be expect it to be. We have agreed to it in those circumstances.

Consequential legislation is, however, routinely taken forward and is rightly considered by this House. Such consequential orders cover matters that cannot be legislated for by the Scottish Parliament. The Scottish Government asked the UK Government to consider section 104 orders in relation to professional regulation and opt-in measures, and subsequently, to consider a section 30 order in respect of those provisions.

The UK Government position is that consequential legislation is the appropriate means of addressing or considering reserve provisions. Fundamentally, the Government are not seeking to substantially alter the devolution settlement via this order. Therefore, it is appropriate that the order is narrow and addresses the key questions asked of us. Ministerial correspondence confirms that the Scottish Government were seeking agreement to a section 30 order on the narrow scope of substances and devices, with further consideration to be given to section 104 orders. The UK Government have agreed to further requests and consequential legislation, which is a normal occurrence.

Of course, the order before the Committee is the order the Government have agreed to take forward with the Scottish Government on the matter of substances and devices. That is the matter that the Government is seeking the approval of the Committee on. Both Governments agree that the specification of substances and devices, as well as their associated regulation, is fundamental to the operation of the Bill before the Scottish Parliament and the workability of the assisted dying regime, which the Bill seeks to introduce.

I reiterate that the UK Government maintain their neutral stance on assisted dying and do not endorse any particular outcome of the consideration of the Bill before the Scottish Parliament. I recognise that there is interest in the existence of schemes across the UK in view of the legislation being considered by the Scottish and UK Parliaments. The position is not changed by this order. The order has been specifically designed to ensure that the Scottish Parliament can create an overall framework for medicines and devices to be used in an assisted dying regime, should it choose to do so.

--- Later in debate ---

[Kirsty McNeill]

I thank hon. Members for their contributions and consideration—I hope to cover all the points raised in turn. I will begin with reflections from the hon. Member for West Aberdeenshire and Kincardine, who asked why this debate was not conducted on the Floor of the Commons. As he will know, because we have sat opposite each other in this space many times, Scotland Act 1998 orders are generally considered in Delegated Legislation Committees and subsequently put to the House by a motion, so that is entirely in keeping with normal practice.

The hon. Member for Perth and Kinross-shire asked for clarification of the UK Government’s role in medicines regulation and, indeed, a justification for that. The UK Government’s role in medicines regulation is to set and oversee the UK-wide statutory framework that ensures licensed medicines are safe, effective and of high quality before they can be supplied to patients. In our view, it is critical that regulatory consistency is maintained across the UK. It has been a key priority post the EU exit, and we have prioritised avoiding any divergence between regulatory approaches.

The limited nature of that change will ensure that the overall integrity of the UK-wide medicines regime is retained, whether the Scottish Parliament approves the McArthur Bill or not. Staying with that line of questioning, the hon. Member for Perth and Kinross-shire asked why the Secretary of State will continue to have the final say over how that power is used. The draft order’s change to the legislative competence is specifically designed to allow for that to be retained, because we think that the UK Government have an appropriate role in the overarching regulation of medicines across the UK. That is why it is, and will remain, reserved. However, we do want to enable the Scottish Parliament to introduce provisions that could confer power in that way—in a way that simultaneously maintains the integrity of the UK medicines regime and allows the Scottish Parliament to debate that which is legitimately inside their competence.

[Pete Wishart]

The Minister is right that the Scotland Office has an appropriate role, but to have the final say is quite different from anything we have considered in section 34. She has not given any explanation of why that is required.

[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.

[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.”

[Pete Wishart]

I cannot see why there could not be a section 30 order for the outstanding provisions beyond the medical resources. The Minister could do that. This is a failsafe. However, there is absolutely nothing wrong with what the Chair of the Scottish Affairs Committee requested, which is some sort of draft order, so that we could see specifically what would be included. That would at least give some comfort to the MSPs who are considering this Bill.

[Kirsty McNeill]

Officials of both Governments are working through a range of scenarios, but what we cannot do is table an order about a Bill that has not been passed. There are ongoing discussions, as we would hope and expect, but we cannot use a section 104 order until a Bill has received Royal Assent.

The Chair of the Scottish Affairs Committee has asked for clarification on whether the Scottish Parliament would be able to amend or repeal the Act’s regulation-making powers in a future Scottish parliamentary Session. I am pleased to clarify that if the Bill is passed and contains regulatory-making powers authorised by a section 30 order, it would not be possible for the Scottish Parliament to amend or repeal those regulation-making powers in a future Session. The time limits in this section 30 order mean that it would no longer be within the Scottish Parliament’s legislative competence to do so. Instead, subject to the Secretary of State’s approval, they would be able to revoke or amend the regulations that have been made under those powers.

I will take a moment to answer the question that the Chair of the Scottish Affairs Committee raised about receiving a copy of the response to the report in a timely fashion. We have responded, and I am grateful to the Committee for submitting it, but her points about timeliness and courtesy are well taken. I will make sure that courtesies are observed in future.

The hon. Member for Perth and Kinross-shire asked about whether the UK Government would consent to a future section 104 order request. As per the correspondence between the Scottish Parliament and Scottish Government, we understand that the Scottish Government will seek the agreement of the UK Government after the Bill passes. That will ensure that practitioners are protected should they choose to opt out of an assisted dying service. We expect to agree in principle to take forward that order, but it will be considered in the usual way, once we have actual legislation to look at.

The hon. Member for Perth and Kinross-shire also asked whether, in effect, failure to pass this draft order would have the practical effect of stopping legislation progressing in the Scottish Parliament. That is our view. We must pass this today to give practical expression to whatever choice the Scottish Parliament makes. It is their choice to make, but whatever that is, we believe it is our constitutional responsibility to facilitate the progress of legislation through the Scottish Parliament.

A number of questions were asked about the justification for a time limit in the draft order. The time limit reflects two things. First, it reflects that this is not a permanent—perhaps to the displeasure of the hon. Member for Perth and Kinross-shire—alteration to the devolution settlement, and secondly, that it would not be appropriate to pre-empt consideration by any future Scottish Parliament and attempt to bind it in that way. The section 30 order on an independence referendum illustrates that there is a precedent for including a time limit in a section 30 order. We have concluded that it is appropriate to provide for temporary, and temporary only, devolution of legislative competence in a section 30 order, because it is seeking to address a very specific issue.

We are considering a very narrow and technical order that provides the Scottish Parliament with a time-limited ability to include powers in the Bill to identify and regulate substances and devices that could be used in an assisted dying regime. It is important to be clear that the draft order enables the Scottish Parliament to do that, if it chooses—it in no way compels it to. The decision on whether to create an assisted dying regime in Scotland remains, as it should be, a decision for Members of the Scottish Parliament. Although the Government remain neutral on assisted dying, we believe that our approach with this draft order is appropriate.

[The Chair]

Before I put the Question, for clarity I should mention that the Chair of the Scottish Affairs Committee does not have a vote on the draft order.

Question put.