United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024

6 Acts of public authorities to be compatible with the UNCRC requirements

(1) It is unlawful (subject to subsection (4)) for a public authority to act, or fail to act, in connection with a relevant function in a way which is incompatible with the UNCRC requirements.

(2) In subsection (1), a “relevant function” means a function that—

(a) it is within the legislative competence of the Scottish Parliament to confer on the authority, and

(b) is conferred by—

(i) an Act of the Scottish Parliament,

(ii) a Scottish statutory instrument originally made wholly under a relevant enabling power,

(iii) a provision in a Scottish statutory instrument originally made partly under a relevant enabling power, provided that the provision itself was either—

(A) originally made under the relevant enabling power, or

(B) inserted into the instrument by an Act of the Scottish Parliament or subordinate legislation made under a relevant enabling power, or

(iv) a rule of law not created by an enactment.

(3) In subsection (2), “relevant enabling power” means a power to make subordinate legislation conferred by a provision in an enactment of a kind mentioned in that subsection, unless the provision was inserted by an enactment of a kind that is not mentioned in that subsection.

(4) But subsection (1) does not make unlawful doing or failing to do something if the authority was required or entitled to act in that way by words that—

(a) are not contained in an enactment of a kind mentioned in subsection (2)(b), or

(b) are contained in such an enactment having been inserted into it by an enactment of a kind that is not mentioned in subsection (2)(b).

(5) In this section, “public authority”—

(a) includes, in particular—

(i) the Scottish Ministers,

(ii) a court or tribunal,

(iii) any person certain of whose functions are functions of a public nature (but see subsection (8)),

(b) does not include the Scottish Parliament or a person carrying out functions in connection with proceedings in the Scottish Parliament.

(6) For the purposes of subsection (5)(a)(iii), “functions of a public nature” includes, in particular, functions carried out under a contract or other arrangement with a public authority.

(7) Functions are not excluded from being functions of a public nature for the purposes of subsection (5)(a)(iii) solely because they are not publicly funded.

(8) In relation to a particular act, a person is not a public authority by virtue only of subsection (5)(a)(iii) if the nature of the act is private.