Contribution
My Lords, I am obliged to the Minister for engaging with me on this topic. To be clear at the outset, we are not concerned with the merit, or otherwise, of the content of the legislation in question. However, this raises a somewhat technical issue with regard to the devolved settlement.
I begin with a general résumé of where we are regarding the devolved settlement. Schedule 5 to the Scotland Act 1998 contained expressed reservations to the United Kingdom Parliament. They were very carefully and deliberately identified as areas where it was appropriate that there should be UK-wide legislation, rather than devolved legislation, touching upon certain fundamental and important matters.
The Minister has mentioned medicines and medical devices, as contained in paragraph J of Schedule 5, but that does not sit alone. The regulation of all the health professions and the medical professions is expressly reserved in Schedule 5, as is the matter of employment law, for the very simple reason that uniformity within the United Kingdom was thought important and to take precedence over the desire for devolved competence.
There is a provision in Section 29 of the Scotland Act which makes it clear that, if the Scottish Parliament passes legislation that is not within devolved competence, it is not law. It is as simple as that. The competence of the Scottish Parliament can, of course, be extended by Section 30, and we have heard reference to a Section 30 order. That is an unusual mechanism, last used more than 10 years ago in respect of the referendum on independence. Moreover, it is not a mechanism that has ever been used before in respect of a Member’s Bill. Within the Scottish Parliament, what we understand as a Private Member’s Bill is referred to as a Member’s Bill. In addition, within the Scottish Parliament, when referring to a Bill, one refers not to clauses but to sections; I hope that noble Lords will bear with if I adopt the appropriate references in dealing with this matter.
Interestingly, this is also a Bill in respect of which the Scottish Government have declared themselves neutral. We are being asked to grant a Section 30 order extending devolved competence to a Member’s Bill in respect of which the Scottish Government have declared repeatedly that they are entirely neutral.
Section 30 does and can be used to extend devolved competence for the purposes of passing legislation in the Scottish Parliament. That has to be contrasted with Section 104 of the Scotland Act, which can be used to extend the range of a competent piece of legislation that has already been passed by the Scottish Parliament. In other words, if the Scottish Parliament has competently passed legislation but would wish to see it extended into reserved areas, the Secretary of State of the UK Parliament can make an order under Section 104, so extending the relevant legislation.
A simple example would be where the Scottish Parliament passed legislation for the recognition of gender certificates for 16 year-olds. That was a proposal which came to grief for other reasons. If it had wanted to see that legislation, with those certificates recognised by registrars in England and Wales, it would have required a Section 104 order from the Secretary of State in order that the Scottish legislation could be extended. It is important to keep in mind the distinction between Section 30 orders, which will allow an extension of devolved competence in order that the Scottish Parliament can pass legislation that is then competent and is then law, and the situation in which it is extended after it has been passed by virtue of a Section 104 order.
A Section 104 order cannot make competent a piece of legislation that is not within devolved competence. If the Scottish Parliament passes an Act that is not within devolved competence, then, as I mentioned earlier, it is not law and it cannot be made law by the Secretary of State making an order under Section 104. To give perhaps a poor analogy, if the legislation from the Scottish Parliament is competent but rather sick, it can be made well by a Section 104 regulation. If the legislation passed by the Scottish Parliament is not law—if it is dead—it cannot be brought back to life by a Section 104 order.
We are dealing here with a Member’s Bill in the Scottish Parliament which deals with the regulation of the health professions—the medical professions—in order that they can assist people to die. We are concerned with the regulation of medical substances in order that they can be lawfully administered by medical professionals to assist people to die.