The Scotland Act 1998 (Modification of Schedule 5) Order 2026

Published: Wed 11th Mar 26

This Order, made under the Scotland Act 1998, temporarily modifies Schedule 5, which defines reserved matters, to grant the Scottish Parliament limited legislative competence concerning the identification and regulation of substances and devices used in assisted dying for terminally ill adults.

The legislative power conferred is conditional: Scottish Ministers can identify substances/devices via subordinate legislation only with the Secretary of State’s agreement, while the Secretary of State retains power to regulate those items without Scottish Minister agreement.

These exceptions apply only to Scottish Acts resulting from Bills passed before 7 May 2026, and the Scottish Parliament cannot use this limited power to mandate the content of the regulation or impose duties on the Secretary of State.

Arguments For

Provides a mechanism for the Scottish Parliament to legislate on the complex and sensitive issue of assisted dying for terminally ill adults, reflecting potential shifts in devolved public policy.
Establishes clear, albeit conditional, concurrence requirements (agreement of the Secretary of State) for the Scottish Ministers to identify relevant substances/devices, maintaining a degree of UK government oversight over reserved matters.
Sets a clear deadline (Bills passed on or before 7 May 2026) for the Scottish Parliament to act, ensuring that temporary modifications to the reserved powers framework do not become permanently entrenched without further legislative review.

Arguments Against

Introduces complexity by creating specific, time-limited exceptions to reserved matters (Schedule 5), potentially creating legal uncertainty around areas traditionally controlled by the UK Parliament.
Imposes significant constraints on the Scottish Parliament's ability to fully implement its intended legislation by prohibiting mandates or restrictions on the content or timing of subsequent subordinate legislation made by Scottish Ministers or the Secretary of State.
While modifying Schedule 5, the Order prevents the Scottish Parliament from imposing duties upon the Secretary of State, thereby limiting the scope of accountability and administrative control the devolved government can exercise over the parallel UK regulatory function.

STATUTORY INSTRUMENTS

2026 No. 276

CONSTITUTIONAL LAW DEVOLUTION, SCOTLAND

The Scotland Act 1998 (Modification of Schedule 5) Order 2026

Made - - - -

10th March 2026

Coming into force - -

11th March 2026

This identifies the instrument as a Statutory Instrument, numbered 2026 No. 276.

It falls under the legal categories of Constitutional Law, Devolution, and specifically applies to Scotland.

The Order was formally made on March 10th, 2026, and became legally effective the following day, March 11th, 2026.

At the Court at Buckingham Palace, the 10th day of March 2026

Present,

The King's Most Excellent Majesty in Council

This Order is made by His Majesty in Council in exercise of the power conferred upon Him by section 30(2) of the Scotland Act 1998( 1 ).

In accordance with paragraphs 1 and 2 of Schedule 7 to that Act( 2 ) a draft of this Order has been-

(a) laid before and approved by a resolution of each House of Parliament; and
(b) laid before and approved by a resolution of the Scottish Parliament.

Accordingly His Majesty, by and with the advice of His Privy Council, makes the following Order.

The Order was approved by the King in Council at Buckingham Palace on March 10, 2026.

His Majesty issues the Order using the authority granted by Section 30(2) of the Scotland Act 1998.

Before being made, the draft instrument had to be approved by resolutions passed by both Houses of the UK Parliament and the Scottish Parliament, following procedures outlined in Schedule 7 of the 1998 Act.

Citation, commencement and extent

-(1) This Order may be cited as the Scotland Act 1998 (Modification of Schedule 5) Order 2026 and comes into force on the day after the day on which it is made.

(2) This Order extends to England and Wales, Scotland and Northern Ireland.

Article 1 sets out the title by which the Order is known.

It officially took effect the day following its making date.

The geographical scope of this Order applies across all parts of the United Kingdom: England, Wales, Scotland, and Northern Ireland.

Assisted dying: identification and regulation of substances and devices

In Part 3 of Schedule 5 to the Scotland Act 1998 (reserved matters: general provisions), after paragraph 4 insert-

( 1 ) 1998 c. 46.

( 2 ) Paragraphs 1 and 2 of Schedule 7 have been modified by paragraph 3(2) of schedule 4 to the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10).

Article 2 inserts new provisions immediately following paragraph 4 in Part 3 of Schedule 5 to the Scotland Act 1998; this Schedule defines matters reserved to the UK Parliament.

The subsequent text introduces specific exceptions regarding assisted dying legislation.

Footnotes reference the primary 1998 Act and clarifying modifications made by the 2010 Scottish interpretation legislation.

'Assisted dying: identification and regulation of substances and devices

(1) This Schedule does not reserve the conferral of a power on the Scottish Ministers to identify, by way of subordinate legislation made with the agreement of the Secretary of State, substances or devices for use in assisting terminally ill adults to voluntarily end their own lives.

(2) This Schedule does not reserve the conferral of a power on the Secretary of State to regulate such substances or devices by way of subordinate legislation made without the agreement of the Scottish Ministers or any other person (except Parliament).

(3) The exceptions created by sub-paragraphs (1) and (2) apply only in relation to a provision that is contained in an Act of the Parliament resulting from a Bill passed on or before 7 May 2026.

(4) The exceptions created by sub-paragraphs (1) and (2) do not apply in relation to a provision that-

(a) mandates or restricts-
(i) the substances or types of substances that may be identified;
(ii) the devices or types of devices that may be identified;
(iii) how the substances or devices may be regulated;
(b) mandates or restricts the period within which subordinate legislation may be made or agreed to;
(c) imposes a duty on the Secretary of State.

(5) In sub-paragraph (4)(c), the reference to imposing a duty on the Secretary of State does not include reference to-

(a) requiring that subordinate legislation be made by statutory instrument to which the Statutory Instruments Act 1946( 3 ) applies, or
(b) providing that subordinate legislation may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.'.

Richard Tilbrook Clerk of the Privy Council

Sub-paragraph (1) ensures that the Scottish Parliament can grant its Ministers the power to identify specific substances or devices for assisted dying through secondary legislation, provided the UK Secretary of State agrees to the identification.

Sub-paragraph (2) allows the Secretary of State to regulate these same items via secondary legislation without needing approval from Scottish Ministers or anyone else, except Parliament itself.

Sub-paragraph (3) imposes a time limit: these new devolved powers only apply to Scottish Acts passed based on Bills approved before May 7, 2026.

Sub-paragraph (4) details exceptions where the devolved powers cannot be used; this prevents the Scottish Parliament from legislating retrospectively to control the content (substances, devices, regulation methods) or the timing of making that subordinate legislation, or from placing any formal duties upon the Secretary of State.

Sub-paragraph (5) clarifies that even when prohibiting duties on the Secretary of State (per 4(c)), the Scottish Act can still specify the standard UK parliamentary procedures (Statutory Instrument process and UK Parliament approval) for any subordinate legislation made by the Secretary of State.

The article concludes with the signature of the Clerk of the Privy Council.

EXPLANATORY NOTE

(This note is not part of the Order in Council)

This Order modifies Schedule 5 to the Scotland Act 1998 (c. 46). Schedule 5 defines reserved matters for the purposes of that Act (matters which are outside the legislative competence of the Scottish Parliament).

Article 2 provides for a general exception to the list of reserved matters in Schedule 5. This exception gives the Scottish Parliament limited competence to legislate in relation to the identification and regulation of substances and devices for use in assisting terminally ill adults to voluntarily end their own lives. The conferral of competence on the Scottish Parliament is time limited in that it only extends to provision contained in an Act of the Scottish Parliament which results from a Bill passed by the Parliament before 7 May 2026.

The exception is limited to the extent that it allows the Scottish Parliament to:

confer a power on the Scottish Ministers to identify substances or devices, by way of subordinate legislation with the agreement of the Secretary of State, and
confer a power on the Secretary of State to regulate such substances or devices, by way of subordinate legislation.

In conferring powers to make subordinate legislation, the Scottish Parliament may not mandate or restrict the content of such legislation, or the period within which such subordinate legislation may be made or, as the case may be, agreed to by the Secretary of State.

Any conferral of power on the Secretary of State to make subordinate legislation may not be made conditional upon the agreement of any person, including the Scottish Ministers. Further, the conferral of competence does not extend to imposing any duty on the Secretary of State. However, this does not prevent the Scottish Parliament making provision with respect to the Parliamentary processes which are to apply to any subordinate legislation.

An impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sectors is foreseen.

The Explanatory Note clarifies that the instrument amends Schedule 5 of the Scotland Act 1998, which specifies matters reserved to the UK Parliament, thereby rendering them outside the Scottish Parliament's legislative reach.

Article 2 carves out a temporary exception, allowing the Scottish Parliament to legislate regarding the identification and regulation of assisted dying substances/devices for terminally ill adults, provided the related Bill passes before May 7, 2026.

The permission allows the Scottish Parliament to delegate powers to Scottish Ministers (subject to UK approval) for identifying materials, and to delegate power to the Secretary of State for regulating them.

Crucially, the Scottish Parliament cannot dictate the content or timeline of this subsequent subordinate legislation nor impose duties on the Secretary of State, although it can specify the standard UK parliamentary scrutiny for that secondary legislation.

No impact assessment was deemed necessary because minimal impact on sectors was anticipated.

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