Scotland Act 1998 (Modification of Schedule 5) Order 2026

Lord Weir of Ballyholme Excerpts

Tuesday 10th February 2026 Lords Chamber

If followed, the approach raised by the regret amendment from the noble and learned Lord, Lord Keen, would in the Government’s view alter the devolution settlement more than is necessary or appropriate to deal with this matter. We should be cautious about amendments to the Scotland Act, which could result in an expectation of incremental adjustment to the constitutional arrangements. That is why the order is so narrowly framed and time limited. The approach we have taken is a sensible and proportionate action that will protect the devolution settlement, retain the integrity of the UK-wide medicines regime and enable MSPs to consider their Bill with clarity about how substances and devices that could be used for assisted dying could be dealt with—

[Lord Weir of Ballyholme (DUP)]

The Minister mentioned the prospect of maybe producing a draft order but seemed to indicate that the Government would not do so until they had certainty on the Scottish Parliament’s final position on those two issues. Is there not a danger that the Government’s position will create a Catch-22 situation? MSPs will be voting not knowing what the Section 104 orders will be and, on the flip side, the Government will not produce those without knowing what the MSPs will settle on. It creates a contradiction on both sides. If part of the idea is to give as much certainty as possible, would that not be a flaw?

[Baroness Smith of Cluny (Lab)]

I am grateful to the noble Lord for raising this issue, because I can see that it is creating confusion, and I think that reflects how complicated and difficult the matter has been. The first thing to say is that it is not for the UK Government to draft any Section 104 orders; it is a matter for the Scottish Government to make sure that their legislation remains within the competence of their Parliament, and it is for them to request a Section 104 order and not for this Government to propose it to them. So, it would not be appropriate to draft and publish it, even if the other issues that I have mentioned were not present. But I am very sympathetic to the position of MSPs and others who would prefer to see a complete and neatly tied-up regime before them before they voted on it.

The fact is that it is complicated and strays into reserved areas, and the Scottish Government and the UK Government have sought to deal with that in the most efficient and respectful way towards the MSPs and the devolution settlement. The comfort that I give today is that we are in very constructive and collaborative conversations with them and stand ready to receive any requests for Section 104 orders.

On that note, I think we should celebrate the co-operation of the two Governments on what has been a very tricky issue. This is a Member’s Bill, so it was not a straightforward issue between two Governments that could be dealt with in the usual way. Both Governments are neutral on the issue. It is also a high-profile issue and, indeed, a highly emotive one.

This is what a constructive, mature and respectful reset of the relationship with the devolved nations looks like. I therefore commend this order to the House.