Seòmar agus comataidhean

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.

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 section 104 process is, but I absolutely give the commitment that Mr McArthur seeks. When it comes to transparency, we have attempted to furnish the committee, Mr McArthur and MSPs with as much information as we can. Indeed, we did so all through the stage 2 process, when we gave a critique of amendments and of elements of the bill as it stood, and we will endeavour to do what we can and provide as much information as we can in relation to Mr McArthur’s question about the section 104 process.

Perhaps Mr Byrne can provide further illumination of the precedent here.

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.

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 policy coherence. It is for Mr McArthur to lead on that. That said, I know that the discussions with UK ministers on the routes that have been applied with regard to the decisions on the section 30 order and the role of the secretary of state have been about providing for some form of policy coherence.

There are various scenarios at play here: Ms Leadbeater’s bill could fall, Mr McArthur’s bill could fall or they could both proceed. We do not know the outcome in that respect; each Parliament has an independent process to go through, and interaction between the two processes is very limited.

Again, it is for Mr McArthur and Ms Leadbeater to answer the majority of the question on policy coherence, but as far as discussions on legislative competence are concerned—and it is an issue that the Scottish and UK Governments have been discussing—I set out in my opening statement that the secretary of state has been involved in order to provide coherence with regard to the regulation of medicines and devices.

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 some familiarity with section 30 orders that have been laid in the past, and, indeed, the predictions about the time that these things can take, will be aware that the process has moved at pace. It has been very constructive, and I am very grateful to UK ministers and officials, as well as my officials, for the work that has been done to progress these matters at pace. I expect a similarly constructive approach to be taken to the section 104 process, and that I will be able to provide an update as soon as possible to the committee, and to all members, on the conclusion of the section 104 discussions.

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 assurances will be given about the UK Government’s role thereafter. The discussions on those elements have not concluded, however, so it would be unfair of me to state categorically the position right now.

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 it to meet the legislative competence requirements. I am, however, certainly content that the section 30 order elements will give the Parliament the ability to legislate in the areas that the order covers. The section 104 process has to run its course and, regardless of the conclusion of those discussions, there will still be a requirement for amendment to the bill in order for it to be passed as competent.

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 use within the health service, so its role in being able to determine new approaches will be important to the flexibility that you mentioned.

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 our part, I commit to continuing to keep the committee, the Parliament and Mr McArthur as up to date as we can about progress with the discussions and what the outcome of them means for the progress of the bill. That is probably as much as I can say at this stage.

10:15

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 with regard to our approach to stage 3.