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

Patricia Ferguson Excerpts

Tuesday 10th February 2026 General Committees

[Patricia Ferguson (Glasgow West) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Twigg. Instruments such as this draft order alter Scotland’s devolution settlement and require inter-governmental co-operation: areas that fall squarely within the remit of the Scottish Affairs Committee. For that reason, as members of this Committee will know, the Scottish Affairs Committee has scrutinised the draft order and published a report to aid Parliament’s consideration of the instrument. I should put on record that I am grateful to the Scotland Office for its engagement with us, and that our correspondence is of course published on the Committee’s website.

I wish to make it clear that the Committee remains neutral on the issue of assisted dying. Our report does not comment on the substance of that sensitive matter, but it does draw Parliament’s attention to some unusual features of the draft order. Given the relative rarity of section 30 orders, our interest is in the legal and constitutional implications of the order. I will give an overview of those issues in my remarks, but I will first take the opportunity to express my gratitude to my fellow Committee members, some of whom are here today, for their thoughtful consideration of the issues.

This statutory instrument would use powers under the Scotland Act to extend, in a narrow and time-limited way, the Scottish Parliament’s law-making powers. It would do that to enable the Assisted Dying for Terminally Ill Adults (Scotland) Bill to become law if the Scottish Parliament so decides. During the Bill’s scrutiny stages in the Scottish Parliament, the Scottish Government identified three areas that relate to reserved matters under the Scotland Act. If the UK Parliament does not take legislative action, the Bill as it currently stands would be outside the Scottish Parliament’s competence.

The specific way in which those issues are being resolved through this order gives rise to three observations that I would like to draw the Committee’s attention to. The Governments have adopted a two-stage, bifurcated approach to address the three competence issues. The draft section 30 order will only resolve the issues related to the “regulation of medicines and medical devices”. The other two outstanding competence issues, relating to the “regulation of medical professions” and “employment and industrial relations”, are expected to be resolved via a section 104 order. A section 104 order would make consequential provision after the Bill receives Royal Assent. That requires the relevant provisions to be removed from the Bill before it is passed by MSPs. 

The Scottish Affairs Committee asked the UK Government why they adopted the two-stage approach, rather than addressing all the competence issues in one go. In response, the Government said that their approach would allow the Scottish Parliament to debate “with clarity” how the Bill’s “core” issues will be handled, rather than issues that might arise as a consequence. They also said that section 104 cannot be used to confer powers to make subordinate legislation, which the Bill’s provision on substances and devices for assisted dying would require. That explains why not all issues were dealt with using a section 104 order, but it does not explain why some issues are being dealt with by a section 104 order rather than this section 30 order. Our report highlighted that this approach has implications for effective scrutiny. In particular, it means that while the Scottish Parliament will have clarity over how issues relating to substances and devices will be handled, there will be no such clarity in respect of the other two competence issues. 

The Scottish Government have already indicated that some provisions will need to be removed from the Bill before the final stage 3 vote. It would not be possible for MSPs to assess the section 104 order, which will be used to fill the legislative gaps, before the Bill is passed. Our report suggested that any uncertainty could be remedied by the UK Government publishing their section 104 order in draft, before the Scottish Parliament’s stage 3 consideration. Given the draft order’s constitutional significance, we also recommended that the instrument should be debated on the Floor of the House, rather than in a Delegated Legislation Committee; I note that that the approach has been taken in the other place. However, Members will know that this recommendation was not adopted by the Government, which is disappointing. On that point, I will take this opportunity to gently highlight to the Minister that it might have been courteous and helpful for the Department to have written to the Scottish Affairs Committee before this Delegated Legislation Committee was scheduled to respond to that specific and time-sensitive recommendation. 

Our report also casts light on the ongoing role retained by UK Ministers within this draft order. The manner in which the draft order confers powers relating to medicines and devices means that these powers are only nominally transferred to the Scottish Parliament. The Secretary of State will retain the  ultimate say over how those powers are used. It is clear that the approach has been agreed by both Governments. However, our report highlighted that it is a novel, though perhaps not unprecedented, approach. The default approach is that, when a matter has been devolved, the Scottish Parliament confers powers on Scottish Ministers, who are then answerable to the Scottish Parliament. However, this section 30 order envisages that some regulations resulting from the Act could be made by a UK Government Minister acting alone. Those regulations would not be subject to scrutiny by MSPs. This approach is unusual, as the Scottish Parliament does not normally confer powers on UK Ministers. Will the Minister clarify in her response how the remaining competence issues will be resolved and what consideration the Government have given to implications for effective scrutiny?

Finally, our report draws special attention to the time-limited nature of the draft order. While time limiting a section 30 order is not in itself new, this one is slightly different. The powers that the draft order confers would effectively expire if the current Bill does not complete its final stages before the Scottish Parliament elections this year. When questioned on this approach, the UK Government confirmed that they are willing to devolve competence only in respect to the specific Bill currently under consideration. However, what is less clear is how the time limit would affect subsequent amendments to the primary legislation further down the line—for example, if the Scottish Parliament wish to change the regulation-making powers of the Act. For the benefit of the Committee, I hope that the Minister will outline in her response whether the Scottish Parliament would be able to amend or repeal the Act’s regulation-making powers in a future Scottish parliamentary Session.

The draft order has important constitutional implications. It is right that these issues have been properly scrutinised, and I hope that the Scottish Affairs Committee’s report will be useful to the Committee and to the wider House. The Department has responded to the Committee’s report, and that response will be considered by the Committee at our meeting tomorrow. We will make every effort to ensure that the response is published before the House votes on this instrument.

I look forward to the Minister’s response to the points I have highlighted, particularly regarding the need for clarity on any forthcoming section 104 orders, the novel role for UK Ministers and the implications of the proposed time limit.