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]
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 does not change the Government’s position of neutrality. It is about enabling the Parliament to make its decision based on the merits of the issue and the conscience of individual MSPs. Earlier in the process, we committed to engaging to ensure that that would happen in the best way that we could possibly manage.The discussions are clearly based on an element of negotiation between Governments. We are talking about areas of reserved policy that are, at the end of the day, the responsibility of the UK Government, and it is for the UK Government to decide which elements are contained in a section 30 order and which are contained in a section 104 order.Dr Gulhane is also correct that my understanding—officials may correct me if I am wrong—is that a section 104 order would require to proceed regardless of whether similar legislation was going through the House of Commons or the House of Lords and, indeed, whether that particular legislation passed. This is a separate process that is based on the Scottish Parliament’s processes.
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...