Baroness Smith of Cluny (Lab)

I am grateful to noble Lords for their contributions to this debate. I will respond to the specific points raised, but first I mention four overarching points that are important to hold in mind in this debate. It is for the Scottish Parliament, not the UK Government, to ensure that when it legislates it does so within its competence. That means that our role, in respect of that legislative competence, is necessarily responsive and not proactive. Had we failed to respond to the request made by the Scottish Government, it is our view that MSPs would have been in the position of having to consider whether to vote for an assisted dying scheme without knowing what fundamental parts of such a scheme would entail—in this case, the medicines and devices to be used. While the Government are neutral on the issue of assisted dying, they are not neutral on the issue of devolution. We believe in the proper functioning of the devolution settlement. To have denied this order would have been to deny Scottish MSPs the opportunity to make law in a devolved area, with a clear understanding of how that law would operate. This is not a debate on the issue of assisted dying but it is a debate on the devolution settlement and whether this House is prepared to afford the Scottish Parliament the respect of legislating in the devolved area of health in a coherent way. I turn to address the specific issues raised, dealing first with the queries of the noble and learned Lord, Lord Keen. He told us that a Section 30 order had last been used with reference to the independence referendum. That is not quite right, although it was round about the same time. It was last used for the reduction of the voting age in the Scottish elections to the age of 16. However, I do not demur from the point that it is unusual—16 have been used since devolution was introduced, and I do not shy away from that. The noble and learned Lord pointed out that it had never been used for a Private Member’s Bill, which is also right. It reflects the particular and unusual circumstances in which we find ourselves, with a Private Member’s Bill and two Governments who are neutral on the issue. It has been a challenging process. The noble and learned Lord, Lord Keen, tells us that the Bill may not be competent and, if so, will not be law if it is passed without the two further matters of legislative competence questions that I referred to when I set out the relevant matters. These, as I understood the noble and learned Lord to identify them, were the regulation of professions and employment matters. The difference of opinion really comes down to an analysis. As the noble and learned Lord puts it: what is the purpose of the Bill when one assesses whether or not it falls within competence? That is right. It comes down to an analysis of what you regard as fundamental to the assisted dying regime and what is not. It is this Government’s analysis that the regulation of medicines and devices is fundamental to the scheme, such that it would not be fair to ask Members of the Scottish Parliament to vote on a scheme when they did not have certainty about how that matter would be dealt with. However, it is also our assessment that questions of employment law protections and questions of the regulation of professions, around training and experience, are consequential matters to the regime. They are not of the essence of the scheme; they are consequential matters which can be dealt with after the Bill has been passed and becomes an Act. That is simply a difference of opinion on the analysis of what is fundamental to allow the regime to exist. The noble and learned Lord also complained that the power given to the Secretary of State is too great and, I think I understood him to say, constitutionally novel and certainly constitutionally problematic. We should remember that the Scottish Government have agreed to this, because they agree with us that some matters are so fundamental that they should be regulated and dealt with on a UK-wide basis for the benefit of all citizens of the United Kingdom. The noble and learned Lord also asked why we do not simply extend the Bill proceeding through the UK Parliament. I am sure he will appreciate that the Government’s neutral stance means that they are not in a position to lay amendments to a Private Member’s Bill. On eligibility for the scheme, the noble and learned Lord raised what would happen if the Bill in the Scottish Parliament is passed but the Bill in the UK Parliament is not. This is not a matter for consideration today. That is not what this debate is about; it is about a narrow Scotland Act order. I encourage the House to retain focus on that. This debate is about the devolution settlement, not assisted dying schemes. I also note the discussion he had with the noble and learned Lord, Lord Falconer, and would make the same point that this is not the forum for a discussion about the impact of assisted dying regimes. This is a devolution question. I will now deal with some of the points raised by the noble Baroness, Lady Coffey. I genuinely welcome the opportunity to respond to her thoughtful comments. She talked about transparency and getting a sense of how it all knits together. If that is not clear, I am delighted to have the opportunity to seek to make it more so. The noble Baroness raised the necessity of having the agreement of UK Government Ministers. As a point of detail, she mentioned the Secretary of State for Scotland. In fact, the order is drafted simply to say, “the Secretary of State”, deliberately widely, so that it can be any Secretary of State of the UK Government—whoever is the most appropriate person to do it in any given moment. In any event, her greater point was about the measure of control. This goes back to maintaining the integrity of the United Kingdom’s medicines regime. It has been made clear to the Government that this is important, and we share that view. It is so vital that, in our view, it justifies the measures we have insisted on and the measures that are contained in the order and which the Scottish Government agree with. The noble Baroness asked whether it was correct that the Scottish Government had made a wider request to have the matters contained within the draft Section 30 order. For the record, that is indeed the case. The initial request in September was simply for the narrow order before this House, with the proposal that the remaining matters might be dealt with under a Section 104 order. In November, after some discussion and correspondence, the proposal was made that perhaps all matters could be included in a Section 30 order. We considered this carefully but simply did not agree with the analysis, for the reasons I have given. Our view was that the other matters were properly assessed to be consequential and therefore could be dealt with in a Section 104 order. As I have set out, it was driven by the general principle that we are not looking to extend the devolution settlement more than it needs to be, so if they can be dealt with in a Section 104 order then they ought to be. It was also about the lack of certainty I referred to in opening: this Bill is still progressing through Parliament and is still subject to amendment. We do not know its final form, so it would be rather challenging to include those matters in the Section 30 order, as it would have to be done right now, rather than waiting to see the end form of the Bill.