Scotland Act 1998 (Modification of Schedule 5) Order 2026
Lord Keen of Elie Excerpts(1 week, 4 days ago)
Lords ChamberRead Full debate Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Lord Keen of Elie
At the end to insert “but that this House regrets that the draft Order is drawn too narrowly, such that the modification of Schedule 5 to the Scotland Act 1998 would be insufficient to render the Assisted Dying for Terminally Ill Adults (Scotland) Bill fully within the legislative competence of the Scottish Parliament.”
Lord Keen of Elie (Con)
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.
Lord Falconer of Thoroton (Lab)
Can the noble and learned Lord explain what he means by that? I think he is saying that there is no impact assessment of the effect of the regulation of devices and substances being in Scotland rather than England. That is all that paragraph 9 deals with.
Lord Keen of Elie (Con)
No, I am saying that there is no impact assessment in respect of the effect of this legislation in Scotland on the regulation of the medical profession, which is also an expressly reserved matter under paragraph G2 of Schedule 5 to the Scotland Act 1998. Because that will be impacted by virtue of this Section 30 order being granted to the Scottish Parliament, that ought to be a consideration in this context.
Lord Falconer of Thoroton (Lab)
I think the noble and learned Lord misunderstands what is being said here. It says that there is no impact expected in allowing the Scottish Parliament to be the body that allows regulations to be entered into in relation to devices or substances. That is all that is being said here.
Lord Keen of Elie (Con)
That is my very point, with the greatest of respect, because the reserved matters are not just medical devices but regulation of the medical profession. Therefore, the very fact that it is such a narrow order means that the relevant impacts of this Section 30 order and of the legislation, assuming it is competent and passes, have not been properly addressed in this context.
Lord Falconer of Thoroton (Lab)
It is an impact assessment only of this instrument, not the Scottish legislation.
Lord Keen of Elie (Con)
I am underlining the narrowness of this instrument and what it omits. It omits to address properly the effect of passing this legislation through the Scottish Parliament as a consequence of the Section 30 order.
I have sought to make this as clear as possible for at least some of your Lordships. In my respectful submission, this is a situation in which the Government should think again about the course of action they propose to adopt. I therefore express my regret with regard to this instrument.
Baroness Coffey (Con)
My Lords, I have a few questions for the Minister. My noble and learned friend Lord Keen has set out pretty eloquently the issue of the narrowness, and the House will be aware that one of the elements of Section 30 orders, and indeed of a variety of subordinate secondary legislation, is that they cannot be amended. As has been pointed out, one thing that is not covered and not clear in the Section 30 order—although the Government have indicated that it will be in the Section 104 order in order to enact the Bill, if the Members of Scottish Parliament decide to go ahead with it—is how, in effect, that will happen. Instead, a number of questions are raised. For example, the MHRA response pointed out that, if this does go ahead, the UK Government and the regulator want this to be one process that would happen throughout Great Britain.
This is a novel approach—this is the first time this has happened—and I am trying to understand whether, if a Scottish Minister puts forward regulations in light of the Section 30 order, it will require the specific agreement of the UK Government Ministers: the Secretary of State for Scotland. The other way around is that the Scottish Parliament hands over powers to the UK Parliament to decide how a Bill it asked for will be enacted. So we are in this novel situation.
I am interested to understand from the Minister how they got to this point. I know that she set out the narrowness, not going beyond devolution, but when this was debated in the Scottish Parliament in May 2025, Scottish Government Ministers said that they would start a discussion with the UK Government. It is my understanding that actually, the Scottish Government wanted a far wider Section 30 to cover the specific issues my noble and learned friend Lord Keen pointed out.
If we put ourselves in the feet of the Members of the Scottish Parliament, if this goes ahead today, as they get to their stage 3, they will start to remove lots of pieces of the Bill that currently sit in that Bill and then hand over, in effect, the decision on how any of this can be implemented to the UK Government and, subsequently, the UK Parliament. It will not be able to be amended by the UK Parliament, but the UK Government can do what they like. So it would be useful to get an understanding of whether there is a memorandum of understanding that could be shared. Is there any correspondence that could be shared between the two Governments, given that both Governments say that they are neutral on this Bill? If they are neutral on the Bill, how do we know what process they are going to undertake to deploy this in future?
Baroness Smith of Cluny (Lab)
I would be delighted to write to the noble Baroness. It is important that we have precision on this issue and I do not have that information immediately to hand, so I will write.
Lord Keen of Elie (Con)
My Lords, I will be brief. I am a little puzzled by the proposition that the regulation of the medicines to be employed in assisted dying is to be regarded as the central purpose of the Scottish Bill, while the regulation of those applying those medicines is merely consequential. I would have thought that the hand comes before the content, rather than the content before the hand, but there we are. There appears to be a difference of legal opinion on that narrow point.
I accept the observation made by the Minister that there are aspects of this that are complicated and difficult. I nevertheless am left with an abiding impression that this rather complex mechanism ultimately is designed to ensure that it is the Secretary of State who has the final say over the way in which this legislation is implemented, rather than the Scottish Parliament.
But that is where we are. I have expressed my regret with regard to the scope of the Section 30 order and I leave matters there.
Rule of Law
Lord Keen of Elie Excerpts(1 year, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Lord Keen of Elie (Con)
My Lords, first, I extend my welcome to the noble and learned Baroness, Lady Smith of Cluny, both to her place in this House and to the office of Advocate-General. I thank her for a thoughtful maiden speech. I also extend my welcome to my noble friend Lady Laing of Elderslie, who also made a very gentle and compelling maiden speech to this House.
As the noble and learned Baroness, Lady Smith, and I both began our careers at the Bar of Scotland, some anecdote might be appropriate, but that presents something of a generational challenge. However, I can notice this. I first encountered her when she was in about primary 4. This came about in 1984, when I was instructed to appear in the Court of Session to challenge the relevancy of a series of personal injury actions brought on behalf of a firm called Thompsons. I appeared in court, as a rather callow junior, to find that Thompsons had instructed, on the other part of the case, one John Smith MP. And so, we went to debate for a full day. As noble Lords might expect, he proved to be not only a formidable opponent but a most charming colleague. At the end of the day, he invited me to Cluny the following evening for drinks. I arrived there at about 7 pm to find a young lady handing out canapés and a number of formidable political and legal luminaries in the room, including the late Lord Stott, who was a neighbour and who had been Lord Advocate in Harold Wilson’s first Government.
After about half an hour, John’s wife came into the room and announced that Tam Dalyell MP was on the telephone. He was in a public telephone box in Yorkshire and required immediate advice on the law of secondary picketing. More observant Members of your Lordships’ House will recall that this was in the midst of the miners’ strike. John went to the telephone and returned rather quickly, at which point Lord Stott observed that his advice on the law of secondary picketing must have been rather concise, to which John answered, “My advice would have been longer, but Tam ran out of change”. Thus was our first meeting, although I will forgive the noble and learned Baroness if she does not recollect it in detail.
This debate has been rather like one of the opening rounds of the FA Cup; it seems to be 20-0. None of your Lordships came out in favour of tyranny or despotism. I will not say I am surprised by that, but of course there was a fundamental difference of view about what the rule of law actually is. Generally speaking, it fell between two areas—the thin approach to the rule of law, which embraces fundamental rights, and what was termed the thick approach to the rule of law, which is intended to embrace the wide spectrum of human rights, which are flexible, elastic, and sometimes politicised, as well as being in constant development. I come down on the side of the thin approach to the definition and understanding of human rights.
The rule of law is not a rule, and it is not a law. The rule of law is not the rule of a tolerant society as contrasted with the rule of an intolerant society. The rule of law is not the rule of democratic institutions as contrasted with the rule of undemocratic institutions—albeit that experience and history tell us that the rule of law is far more likely to be adhered to when we have democratic rather than undemocratic institutions of government.
The rule of law is a conceptual framework—some might say a principle—within which we can decide what kind of society we want to live in and what laws we wish to be subject to. The rule of law does not define that society and it does not determine those laws. What it tells us is that our society should be governed by law, and not by despotic whim; that such law should be certain and accessible; and that law should be applied equally and without favour to all persons and institutions within our society. For example, a society that determines by law that only persons over the age of 40 may vote in any election may adhere just as closely to the rule of law as a society that determines that anyone over the age of 16 will vote. A society that determines by law that a person may be subject to physical punishment may adhere just as closely to the rule of law as a society that absolutely rejects any such form of punishment. A breach of the laws made by society is not per se a breach of the rule of law. However, the rule of law requires that those who breach the law should be able to determine the existence of such law and be treated equally.
This is where I agree with the observations made by the noble Lords, Lord Sikka, Lord Bach, Lord Bellingham and Lord Hodgson, and the noble and learned Lord, Lord Etherton, that without access to justice there cannot be equality before the law.
In his work on the rule of law that has been referred to on a number of occasions, Lord Bingham described it as follows:
“The core of the existing principle is … that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”.
To that extent, Lord Bingham’s definition of the rule of law is consistent with that of Dicey and Joseph Raz, but Lord Bingham went on to specify eight subcategories to his definition. This is where he appears to depart from both Dicey and Raz. For example, his subcategory 4 states:
“The law must afford adequate protection of … human rights”.
This is where we part between the thin approach to what is properly the rule of law and fundamental rights and the thicker approach which seeks to embrace the rather more flexible concept of human rights.
Of course, the law of any civilised society should afford protection to what are identified as human rights, but is that what we define as the rule of law? The law might expressly place limits on freedom of movement or freedom of expression, both of which may be regarded as human rights. Such a law, publicly and prospectively promulgated, is not per se a departure from the rule of law. If we attempt to merge a society’s present perception of human rights with the principle of the rule of law, then we are liable to create confusion rather than certainty. There, I agree with the noble Lord, Lord Verdirame, that while there is room for fundamental rights at the core of the rule of law, such as equality before the law, it cannot be expanded into the more politicised area—and always developing area—of what are termed human rights.
The Roman republic developed a sophisticated legal system and courts which made citizens of Rome subject to the law and not the rule of tyrants. At the same time, it embraced slavery and had a well-developed jurisprudence dealing with all aspects of slavery. Slavery was subject to the rule of law in the Roman republic and not the whim of individuals. Both master and slave were the subject of law. I give that example in order to emphasise that while the rule of law as properly understood and expressed by Aristotle is clear, it is not to be confused with our perception of or belief in human rights. We consider the concept of slavery to be abhorrent. It does not follow that a society which embraced slavery had abandoned the rule of law. The same essential principles apply at the level of international law between states. The relationship between states is generally governed by customary law, conventions and treaties consented to by the states. Such law should be certain and accessible. Such law should be applied equally between states.
Nation states adhere to their treaty obligations as a matter of principle and indeed political expediency. Nation states adhere to their obligations under international conventions on the understanding that, if they do not do so, they may be subject to sanction. However, a breach of a treaty or convention is not to be regarded simply as a departure from the rule of law.
I suggest that it is critical that we begin and end with a correct and certain understanding of what the rule of law is. When you seek to incorporate all aspects of human rights, as interpreted from time to time by courts and international tribunals, you are going to lose the certainty that is required in such an important definition. Indeed, such a step will, as the noble Lord, Lord Lilley, observed, lead eventually not to the to the rule of law but to the rule of lawyers.
So I have to take issue with the noble and learned Baroness, Lady Smith, on the suggestion that all human rights, the Human Rights Act and all human rights embraced by the Council of Europe are fundamental parts of the rule of law. That, I suggest, is to diminish them and confuse what the rule of law actually represents. Of course, human rights have an important place in our society and law, but they stand on their own feet and are not to be confused with the rule of law as such. I thank your Lordships for your attention.