Scotland Act 1998 (Modification of Schedule 5) Order 2026

Baroness Coffey Excerpts

Tuesday 10th February 2026 Lords Chamber

[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?

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[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.

[Baroness Coffey (Con)]

Before the Minister sits down, I asked whether the Government suggested to Kim Leadbeater that she table Amendment 77 back in June, which started to extend parts of the Bill to Scotland. I can always ask the noble and learned Lord, Lord Falconer, about his Amendment 888, but, if she has an answer, I would be grateful if she could share that with the House in some way and at some point.

[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.