Committee
Health, Social Care and Sport Committee 20 January 2026 [Draft]
20 Jan 2026 · S6 · Health, Social Care and Sport Committee
Item of business
Subordinate Legislation
Scotland Act 1998 (Modification of Schedule 5) Order 2026 [Draft]
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.
In the same item of business
The Convener
SNP
Our third agenda item is consideration of one affirmative instrument: the draft Scotland Act 1998 (Modification of Schedule 5) Order 2026. This draft statuto...
The Cabinet Secretary for Health and Social Care (Neil Gray)
SNP
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 ...
The Convener
SNP
Thank you very much, cabinet secretary. I will bring in Sandesh Gulhane.
Sandesh Gulhane
Con
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 ...
Neil Gray
SNP
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...
Sandesh Gulhane
Con
Has the UK Government indicated that it will do that if we pass the bill?
Neil Gray
SNP
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 assur...
Sandesh Gulhane
Con
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 w...
Neil Gray
SNP
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 ...
Sandesh Gulhane
Con
My final question is about unintended consequences. Medications and devices will change with time as medical expertise improves. Do such orders give us the f...
Neil Gray
SNP
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 ...
Gillian Mackay
Green
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 p...
Neil Gray
SNP
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 o...
Brian Whittle
Con
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 a...
Neil Gray
SNP
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 poli...
Emma Harper
SNP
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 t...
Neil Gray
SNP
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 ...
Emma Harper
SNP
Thanks.
Liam McArthur (Orkney Islands) (LD)
LD
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 th...
Neil Gray
SNP
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 secti...
Gerald Byrne (Scottish Government)
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 Parli...
Liam McArthur
LD
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 unde...
Neil Gray
SNP
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 w...
Liam McArthur
LD
Thank you.
The Convener
SNP
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 evidenc...
Neil Gray
SNP
I have nothing further to add, convener.
The Convener
SNP
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?
Liam McArthur
LD
No, thank you, convener.Motion agreed to.
The Convener
SNP
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 Scotti...