The Assisted Dying for Terminally Ill Adults (Scotland) Bill is being considered by the Scottish Parliament. Linked to the Bill, the Scotland Act 1998 (Modification of Schedule 5) Order 2026, which is a draft section 30 Order, is being considered by the Parliament. The Scottish Government has indicated that it believes a section 104 Order will also be necessary to give full effect to the Bill if it is passed by the Parliament.
This blog provides a brief explainer of Orders made under section 30 and section 104 of the Scotland Act 1998.
The Scottish Parliament’s powers to make laws
The Scottish Parliament has legislative competence (i.e., the power to make laws) in some areas. The limits to the legislative competence of the Scottish Parliament are set out in sections 29 and 30 of the Scotland Act 1998 (‘the Scotland Act’). Section 29 of the Scotland Act provides that an Act or provision of an Act of the Scottish Parliament is outside its legislative competence in certain circumstances, if:
- it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,
- it relates to reserved matters,
- it is in breach of the restrictions in Schedule 4 (Schedule 4 sets out ‘enactments protected from modification’ by the Scottish Parliament, for example the UK Internal Market Act 2020),
- it is incompatible with any of the Convention rights (i.e., rights under the European Convention on Human Rights),
- it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland.
Section 30 of the Scotland Act gives effect to Schedule 5 which defines the reserved matters for which the UK Parliament is responsible. These are areas where the Scottish Parliament cannot legislate. Schedule 5 provides for general reservations and specific reservations listed under 11 Heads.
What is a section 30 Order?
A “section 30 Order” is a type of subordinate legislation which is made under section 30(2) of the Scotland Act. Such an Order can be used to increase or restrict, temporarily or permanently, the Scottish Parliament’s legislative competence. A section 30 Order does this by modifying the provisions of Schedule 4 and/or Schedule 5 of the Scotland Act.
A section 30 Order can be proposed by either the Scottish or UK Government but requires approval by resolution of the House of Commons, House of Lords and the Scottish Parliament before it can become law. Once the two Parliaments agree to an Order, it is made as an Order in Council (i.e., at a meeting of the Privy Council with the King in person).
Perhaps the most high-profile example was the The Scotland Act 1998 (Modification of Schedule 5) Order 2013 which temporarily devolved authority to legislate for a Scottish independence referendum to the Scottish Parliament.
Section 30 Orders have also been used to allow the Scottish Parliament to:
- legislate on fire safety on construction sites
- provide an exception to the social security reservation so that the Parliament could legislate in relation to providing support to individuals in certain circumstances
- and most recently (8 October 2015) to allow the Scottish Parliament to legislate for the date of its first general election after the one held in May 2016.
A section 30 Order in relation to the Assisted Dying for Terminally Ill Adults (Scotland) Bill
In a letter to the Delegated Powers and Law Reform Committee dated 16 January 2026, the Cabinet Secretary for Health and Social Care explained:
Provision in the Bill for the specification of approved substances is considered to be absolutely fundamental to the operation of the Bill, and, additionally, provision for identifying devices, as well as regulation of both substances and devices, is thought to be necessary for the Bill’s workability. It was agreed with the UK Government that these would need to be dealt with by section 30 Order.
A draft Order known as The Scotland Act 1998 (Modification of Schedule 5) Order 2026 has been laid in both the UK and Scottish Parliaments. This is a ‘section 30 Order’. The Explanatory Memorandum to the Order explains its purpose:
This Order will amend Part 3 of Schedule 5 to provide a time limited exception to reserved matters in respect of the identification and regulation of substances and devices for use in assisting terminally ill adults to voluntarily end their own lives (hereafter referred to as ‘assisted dying’). This exception will apply to provision so long as it is contained in an Act of the Scottish Parliament that originates from a Bill passed on or before 7 May 2026.
Specifically, the Order provides that the Scottish Parliament may competently confer powers on the Scottish Ministers to identify substances and devices for use in assisted dying, provided this is done by way of subordinate legislation made with the agreement of the Secretary of State. Furthermore, the Order provides that the Scottish Parliament may competently confer powers on the Secretary of State to regulate such substances and devices, by subordinate legislation.
The draft Order is subject to the affirmative procedure. This means that it must be laid in both the Scottish and UK Parliaments in draft and cannot be made, or come into force, unless it is approved by both Parliaments.
The Delegated Powers and Law Reform Committee at the Scottish Parliament considered the draft Order and wrote to the lead Committee on 14 January 2026. The Health, Sport and Social Care Committee (the lead committee) took evidence on the draft Order on 20 January 2026. A note for the Committee on the draft Order is publicly available. The draft Order is yet to be considered by the whole Parliament in the Chamber.
What is a section 104 Order?
A section 104 Order is simply an order made under section 104 of the Scotland Act.
Sometimes, when the Scottish Parliament passes an Act, changes are needed to other laws for the Act to have full effect. Where the laws are in areas reserved to the UK Parliament, section 104 of the Scotland Act allows the King or a UK Government Minister to make secondary legislation considered “necessary or expedient in consequence of any provision made by or under an Act of the Scottish Parliament” or through Scottish secondary legislation.
In December 2024, for example, a section 104 Order was laid by the then Secretary of State for Scotland, Ian Murray MP, so that the Miner’s Strike (Pardons) (Scotland) Act 2022 could be fully enacted. A press release from the Scotland Office explained the purpose of the Order, stating:
The Miner’s Strikes (Pardons) (Scotland) Act 2022 automatically pardons people convicted in Scotland of breach of the peace, breach of bail conditions, or obstructing the police while taking part in strike action. It took effect from 27 July 2022.
At the request of the Scottish Government, this Scotland Act Order would add Section 7 of the Conspiracy and Protection of Property Act 1875 (now repealed) to the pardoning criteria.
Section 104 Orders were also required for Scottish equal marriage and civil partnership legislation and the Fire (Scotland) Act 2005.
Section 104 Orders are only considered by the UK Parliament. Schedule 7 of the Scotland Act provides for the type of procedure subordinate legislation made under the Act is subject to.
A section 104 Order for the Assisted Dying for Terminally Ill Adults (Scotland) Bill?
In a letter to the Health, Social Care and Sport Committee dated 16 December 2025, the Cabinet Secretary for Health and Social Care noted:
The following areas are currently under consideration for a potential section 104 Order:
• provisions in relation to regulation of professions involved in assisted dying, which may relate to the G2 reservation [schedule 5 of the Scotland Act] (regulation of health professions); and
• provisions in relation to employment protections for people who refuse to be involved in assisted dying, which may relate to the H1 [schedule 5 of the Scotland Act] reservation (employment and industrial relations), and potentially the G2 [schedule 5 of the Scotland Act] reservation.
In a letter to the Delegated Power and Law Reform Committee on 16 January 2026, the Cabinet Secretary stated that:
We recognise the importance of the provisions in the Bill related to the regulation of health professions involved in assisted dying and employment protections for people who refuse to be involved, and the inclusion of them in the section 30 Order was discussed with the UK Government. Their view was that, in order to respect the distinction between reserved and devolved matters, anything that could be dealt with by section 104 Order should be dealt with in that way, with changes to legislative competence being kept to a minimum. It was therefore agreed with the UK Government that these provisions, which are, arguably, not fundamental to the workability of the Bill, could potentially be dealt with by section 104 Order…
Our discussions with the UK Government to agree the provisions that could be dealt with by section 104 Order are ongoing.
An intergovernmental process
Although it is for the Scottish and UK Parliaments to agree to or reject Orders made under the Scotland Act, such Orders require a significant amount of intergovernmental working. This is to agree the scope of an Order and the drafting of it. This is work undertaken by Scottish and UK Ministers before an Order is laid in Parliament or made (i.e., becomes law).
Timings in relation to the Assisted Dying for Terminally Ill Adults (Scotland) Bill
In the context of the Assisted Dying for Terminally Ill Adults (Scotland) Bill, the governments have been working to ensure that a section 30 Order is in place prior to Stage 3 of the Bill in the Scottish Parliament. This is to ensure that Scottish Ministers are confident that they could exercise the powers given to them in the Bill to make regulations (which are required to ensure that the fundamentals of the Bill could operate in practice) prior to the Parliament being asked whether the Bill should become law.
Section 104 Orders are consequential upon Scottish legislation. They are usually brought into force after the enactment of a Scottish Parliament Bill, but before its commencement.
Sarah McKay, SPICe research