Part 5: Compatibility Questions and Uncrc Compatibility Issues
122.Part 5 makes provision for a system for the courts to consider compatibility questions (in civil proceedings) and UNCRC compatibility issues (in criminal proceedings) relating to the compatibility of legislation with the UNCRC requirements and public authorities’ compliance with section 6.
Section 31: Meaning of “compatibility question”
123.Section 31 provides the definition of “compatibility question” for this Part. These are questions arising in civil proceedings as to whether words in legislation to which section 29 or 30 apply are compatible with the UNCRC requirements or whether a public authority has acted (or proposes to act) in a way which section 6 makes unlawful.
124.Subsection (2) excludes from the meaning of “compatibility questions” things that would otherwise meet the definition but which occur in criminal proceedings. Those are dealt with as UNCRC compatibility issues and are covered by section 32 instead.
125.Subsection (3) sets out that a compatibility question is not to be taken to have arisen in proceedings just because a party claims one has, if the court or tribunal thinks the party’s contention is frivolous or vexatious.
Section 32: UNCRC compatibility issues in criminal proceedings
126.Section 32 provides the definition of “UNCRC compatibility issues” for this Part (see also section 42(1)). These are questions arising in criminal proceedings as to whether words in legislation to which sections 29 or 30 apply are compatible with the UNCRC requirements or whether a public authority has acted (or proposed to act) in a way which section 6 makes unlawful.
127.This section adds sections 288AB and 288AC to the Criminal Procedure (Scotland) Act 1995 to establish a system to allow lower criminal courts to refer UNCRC compatibility questions to the High Court and for the High Court to refer such questions to the Supreme Court. Where an issue is referred to the Supreme Court, the Supreme Court may only deal with the UNCRC compatibility issue and must remit the rest of the proceedings to the High Court. These sections allow the Lord Advocate to require a criminal court to refer an issue to a higher court.
Section 33: Power to institute proceedings to determine compatibility question
128.Section 33 allows the Lord Advocate to start new proceedings to determine a compatibility question.
Section 34: Power to intervene in proceedings where compatibility question arises
129.Where a compatibility question arises in a case, the court must notify the Lord Advocate, the Commissioner for Children and Young People in Scotland and the Scottish Commission for Human Rights (unless they are already a party to the case). They can then take part in the proceedings as if they were a party to the case.
130.If the involvement of those persons results in the litigation becoming more expensive than it would otherwise have been, section 38 allows the court to award those expenses to the party who incurred them (whatever the outcome).
Section 35: Reference of compatibility question to higher court
131.Section 35 makes provision in the civil courts similar to that added to the Criminal Procedure (Scotland) Act 1995 by section 32.
132.A court other than the Inner House of the Court of Session or the Supreme Court may refer a compatibility question which arises in a case before it to the Inner House. In the case of a tribunal from which there is no appeal, such a reference is mandatory.
133.The Inner House may refer such a question (other than one referred to it) to the Supreme Court.
134.An appeal from the Inner House’s decision on such a reference is to the Supreme Court. Where there would not normally be an appeal to the Supreme Court from a determination of a compatibility question by the Inner House, such an appeal is possible with the permission of the Inner House or, if it refuses permission, the Supreme Court itself.
Section 36: Direct references to Supreme Court: compatibility question arising in proceedings
135.Where a compatibility question arises in proceedings, section 36 allows the Lord Advocate to require the court or tribunal to refer the question directly to the Supreme Court.
Section 37: Direct references to Supreme Court: compatibility question not arising in proceedings
136.Section 37 allows the Lord Advocate to refer a compatibility question to the Supreme Court even if it does not arise in proceedings. Where such a question relates to the proposed exercise of a function by a public authority, the Lord Advocate must notify the public authority in question. That authority may not then exercise the function in the way proposed until the reference to the Supreme Court has concluded.
Section 38: Additional expenses
137.Where a court or tribunal considers that a party to proceedings has incurred additional expense as a result of an intervention by the Lord Advocate, the Commissioner for Children and Young People in Scotland or the Scottish Commission for Human Rights under section 25(8), 27(2) or 34(2), the court or tribunal may award the whole or part of those expenses to the party who incurred them (whatever the decision on the compatibility question).
