The Advocate-General for Scotland (Baroness Smith of Cluny) (Lab)

I thank the noble and learned Lord for his amendment and his engagement with me on this matter. I understand the concerns he has raised. However, the Government believe the approach they have taken is appropriate and in keeping with the devolution settlement. As with all the Scotland Act orders we have considered since the start of this Parliament, this is the result of close collaborative working between the UK and Scottish Governments. The order before us will be made under Section 30 of the Scotland Act 1998, which provides the power for the legislative competence of the Scottish Parliament to be altered. Specifically, it enables modifications to be made to Schedule 4 or Schedule 5 to the Scotland Act 1998. Orders made under this provision are subject to the affirmative procedure in both the UK and Scottish Parliaments. The order was considered by the Scottish Parliament and considered in the other place earlier today. I welcome the opportunity to set out to the House the purpose of the order. I will explain what it does, what it does not do, and why it is the best way of proceeding with this complicated matter. The Assisted Dying for Terminally Ill Adults (Scotland) Bill is a Member’s Bill introduced by Liam McArthur MSP and is currently before the Scottish Parliament. It seeks to create an assisted dying regime in Scotland. I am keenly aware of the sincerely and strongly held views on this topic. I would like to emphasise that the UK Government remain neutral on the matter of assisted dying. It is a matter for MSPs in the Scottish Parliament to determine whether there should be an assisted dying regime in Scotland. The Scottish Government identified areas of this Bill as being outside of legislative competence and, as such, requested a Section 30 Scotland Act order from the UK Government. This was in respect of substances and medical devices which may be used for an assisted dying regime in Scotland. They requested a Section 30 order specifically as they considered that such provisions are a fundamental element of the regime the Bill seeks to introduce. The UK Government considered the request carefully and, following engagement with the Scottish Government, concluded that making a narrow, time-limited Section 30 order would be the most appropriate action. This approach enables Members of the Scottish Parliament to consider the Bill with clarity as to how the matter of substances and devices could be dealt with, while protecting reserved matters, including medicines regulation. This Section 30 order is time-limited in nature to reflect the circumstances of this Scottish Parliament Bill and the upcoming Scottish elections in May. This time limit applies to the legislative competence of the Scottish Parliament, but this will not affect the future exercise of any regulation-making functions conferred by the Bill beyond 7 May 2026, should the Scottish Parliament determine to do so. The order has been specifically designed to ensure that the Scottish Parliament can create an overall framework for medicines and devices to be used in an assisted dying regime, should they decide to do so. I am aware that the content of this order has prompted queries about the approach the Government have taken: first, why the Government have taken forward a Section 30 order and not, for example, a Section 104 order; secondly, the scope of this order and the matters which are not included; and thirdly, the likelihood of other orders being brought forward under the Scotland Act 1998 in due course, including possible Section 104 orders. The Secondary Legislation Scrutiny Committee, which considered the order, as well as the Scottish Affairs Committee in the other place, both raised these points. I take this opportunity to thank them for their scrutiny. Before I deal with the specific issues in detail, I would like to set out the guiding principles that underpin the Government’s approach to this matter. Relying on these has framed and informed our decision to proceed as we have. There are five principles. First, we are not seeking to alter the devolution settlement with Scotland any further than is necessary to deal with this specific issue. Secondly, the UK Government maintain their neutral stance on assisted dying and do not endorse any particular outcome of the consideration of the Bill before the Scottish Parliament. Thirdly, in supporting the proper functioning of devolution, we should put MSPs in a position to be able to vote on a coherent proposal in the devolved matter that is the subject of that Bill. Fourthly, it is in the interests of all the citizens of the UK for our regime regulating medicines and medical devices to be a UK-wide scheme, delivered in a consistent way in all parts of the country. Fifthly, it is the responsibility of the Scottish Government to ensure that the Scottish Parliament legislates within its competence; it is not the responsibility of this Government. Relying on these principles, I turn to the detail of the Section 30 order. I am very conscious that the regret amendment tabled is as interested in what is not in the order as it is in the order itself. In setting out the Government’s reasoning, I hope to deal with these concerns, as well as explain why a Section 30 order was thought appropriate. To provide some context, it may assist to briefly set out the issues that have been raised around legislative competence concerns. There are three: first, the regulation of medicines and medical devices; secondly, the regulation of the medical profession in delivering a scheme, including considerations of training and experience; and, thirdly, the position of the medical professionals who may not wish to take part in the scheme, and the appropriate employment protections they may require.