Where a legislature chooses to regulate an issue of such gravity, the safeguards governing the operation of the law must be subject to the highest level of democratic scrutiny. In Scotland’s devolved constitutional framework, reliance on a Section 104 order under the Scotland Act 1998 to determine key safeguards risks undermining that scrutiny. Although Section 104 orders serve an important technical purpose within the devolution settlement, using them to establish substantive protections in assisted dying legislation would represent a problematic constitutional approach.

A Section 104 order is a mechanism provided for in the Scotland Act that allows the UK government to make secondary legislation at Westminster to adjust reserved law so that an act of the Scottish Parliament can function properly. These orders exist because legislation passed by the Scottish Parliament may interact with areas of law that remain reserved to the UK Parliament. In such cases, changes to UK-wide legal provisions may be required to ensure that Scottish legislation operates coherently across the wider legal system.

The procedural features of Section 104 orders are significant. They are drafted by the UK government and laid before the UK Parliament as secondary legislation. While they are normally subject to the affirmative procedure, meaning that MPs and peers must approve them before they take effect, they cannot be amended during the parliamentary process. Legislators may only approve or reject the instrument in its entirety. Importantly, the Scottish Parliament itself does not vote on the order. These procedural characteristics reflect the intended purpose of Section 104 orders: they are designed to make technical or consequential adjustments necessary to implement devolved legislation, rather than to create substantive policy safeguards.

Using this mechanism to determine critical protections within assisted dying legislation raises several constitutional concerns.

First, democratic accountability is weakened if essential safeguards are determined through a Section 104 order. In such circumstances, MSPs would be unable to amend the provisions governing those safeguards. Decisions central to the operation of a devolved statute would effectively shift from Holyrood to Westminster. For legislation as ethically sensitive as assisted dying, the safeguards that determine how the law functions in practice should be debated and decided by the legislature responsible for passing the statute.

Secondly, reliance on a Section 104 order effectively reduces core safeguards to matters of secondary legislation. Protections such as conscientious objection for health professionals and the minimum qualifications required of participating clinicians are not technical matters. They are fundamental components of any assisted dying framework. However, secondary legislation receives a significantly lower level of scrutiny than primary legislation. As a result, the procedural safeguards normally associated with primary legislation are absent.

Thirdly, reliance on a future Section 104 order creates uncertainty during the legislative process itself. Questions about the scope of conscientious objection, the professional categories covered by such protections, and the training and experience required of clinicians may remain unresolved. In effect, the legislature would be asked to enact legislation without full clarity about how the system will operate in practice.

Finally, reliance on Section 104 orders raises concerns about the long-term stability of safeguards. Once protections are established through secondary legislation at Westminster, future amendments could also be made through secondary legislation. In such circumstances, the Scottish Parliament would have limited direct control over the evolution of safeguards governing a regime that it originally legislated for. This risks weakening the ongoing democratic oversight of the system.

These concerns are particularly acute in the context of assisted dying. Safeguards relating to conscientious objection and clinical expertise lie at the heart of any safe and ethically defensible framework. Health professionals must have clear, robust, and enforceable protections if they do not wish to participate in assisted dying. Similarly, the safety of any regime depends heavily on the training, qualifications, and experience of clinicians responsible for assessing eligibility, prognosis, mental capacity, and potential coercion.

For legislation of such gravity, these safeguards must either appear directly in the bill itself or be established through regulations subject to full scrutiny by the Scottish Parliament. Delegating their design to a Section 104 order risks reducing democratic accountability, lowering the level of scrutiny applied to core protections, and creating uncertainty about how the law will ultimately operate.