6th Report - Draft Scotland Act 1998 (Modification of Schedule 5) Order 2026

We welcome the UK Government’s commitment to keep the Committee up to date on any future Scotland Act orders related to the Assisted Dying for Terminally Ill Adults (Scotland) Bill. (Conclusion, Paragraph 25)

Given the constitutional significance of this draft section 30 Order, it should be debated on the floor of the House of Commons, rather than in a delegated legislation committee. (Recommendation, Paragraph 26)

We note the Government’s rationale that this draft Order will enable the Scottish Parliament to legislate “with clarity” as to how the Bill’s reserved interactions can be dealt with. However, a consequence of the Government’s bifurcated approach is that this clarity would not be afforded in respect of the remaining competence issues, if the relevant provisions are to be removed from the Bill and dealt with after Royal Assent by way of section 104 orders. The UK Government could remove this uncertainty by publishing in draft any section 104 orders in good time before the Stage 3 debate. (Conclusion, Paragraph 27)

The manner in which the draft Order confers powers is, in effect, circular: powers are nominally transferred to the Scottish Parliament, only for the Secretary of State to retain the ultimate say over how those powers are used. (Conclusion, Paragraph 32)

This approach has been agreed between the two Governments, and we offer no view as to whether it is appropriate in this specific instance. However, we wish to highlight that it is novel. It represents a departure from the constitutional default: that if a subject matter has been devolved, the Scottish Parliament confers regulatory powers on Scottish Ministers, who in turn are answerable to the Scottish Parliament as to how those powers are exercised. (Conclusion, Paragraph 33) 13

It is not yet clear whether the Scottish Parliament will opt to confer on the Secretary of State the power to make regulations, or to instead give that power to the Scottish Ministers but with a veto for the Secretary of State, as the draft Order permits. We note that delegating power directly to the Secretary of State would be highly unusual in an Act of the Scottish Parliament, and would mean that the resulting regulations would not be subject to scrutiny by MSPs. (Conclusion, Paragraph 34)

The way in which this draft Order has been time-limited is novel, and we draw this to the attention of the House. (Conclusion, Paragraph 41)

During the debate on the draft Order, the UK Government should clarify whether the Scottish Parliament would, under this section 30 Order, be able to amend or repeal the Act’s regulation-making powers in a future Scottish Parliamentary session. (Recommendation, Paragraph 42) 14