Hansard

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.