Part 2: Duties on Public Authorities
22.Part 2 establishes the duty of public authorities not to act incompatibly with the UNCRC requirements (as defined in section 1) when exercising certain functions, and makes provision about the consequences of any failure to do so.
Section 6: Acts of public authorities to be compatible with the UNCRC requirements
23.Section 6(1) provides that public authorities act unlawfully if they act, or fail to act, in a way that is incompatible with the UNCRC requirements in connection with a relevant function. Effectively, therefore, it imposes a duty on public authorities to act compatibly with the UNCRC requirements when exercising relevant functions. Even where a relevant function is being carried out, however, an incompatible action or failure to act is not unlawful in certain, limited circumstances – see subsection (4), and paragraphs 31 to 34 below.
Meaning of “relevant function”
24.Subsection (2) defines “relevant function”. It sets out two tests, both of which need to be satisfied in order for a function to be a “relevant function”.
25.The first test, set out in subsection (2)(a), is that the function could competently be conferred on the public authority in question by the Scottish Parliament (the limits of the Parliament’s legislative competence are set out in section 29 of the Scotland Act 1998). So, for example, functions (whether statutory or common law1) relating to reserved matters (as set out in schedule 5 of the Scotland Act 1998) are not relevant functions.
26.The second test is that the function must be conferred by legislation or a rule of law of a type mentioned in subsection (2)(b)(i) to (iv) (legislation being the more usual way in which functions are conferred on public authorities). Essentially, the types of legislation listed in subsection (2)(b)(i) to (iii) are those enacted by the Scottish Parliament, or enacted by virtue of the Scottish Parliament delegating its power to make legislation – so Acts of the Scottish Parliament, Scottish statutory instruments made entirely under a power conferred by an Act of the Scottish Parliament, and Scottish statutory instruments made partly under a power conferred by an Act of the Scottish Parliament and partly under a power conferred by an Act of the UK Parliament. In the latter case, only functions conferred by provisions in the instrument which were made solely by virtue of the power conferred by the Act of the Scottish Parliament, plus provisions subsequently inserted directly into the instrument by an Act of the Scottish Parliament (or other subordinate legislation made under a power conferred by an Act of the Scottish Parliament), are subject to the subsection (1) compatibility duty.
27.This means that functions conferred by the following are not subject to the subsection (1) compatibility duty:
Acts of the UK Parliament,
statutory instruments made (including by the Scottish Ministers) by virtue of powers conferred by Acts of the UK Parliament,
those provisions of Scottish statutory instruments made partly under a power conferred by an Act of the Scottish Parliament and partly under a power conferred by an Act of the UK Parliament which are made wholly or partly by virtue of the power conferred the Act of the UK Parliament (or subsequently inserted by an Act of the UK Parliament or by virtue of a power conferred by such an Act).
28.As functions relating to reserved matters are already excluded by subsection (2)(a), subsection (2)(b)(i) to (iii) mainly serves, in practice, to exclude functions relating to devolved matters created by or under the authority of the UK Parliament. This means, for example, that functions conferred by pre-devolution Acts of the UK Parliament are not subject to the subsection (1) compatibility duty, even where the subject matter of such Acts is devolved. Examples of such functions include, at the time of publication of these Notes, functions conferred by the Education (Scotland) Act 1980, the Children (Scotland) Act 1995 and the Criminal Procedure (Scotland) Act 1995. The coverage of the subsection (1) compatibility duty may expand over time, however, if such Acts are repealed and replaced with new provision enacted by the Scottish Parliament in the types of legislation mentioned in paragraph 26 above.
29.Section 42(2) makes provision in relation to the situation where one enactment inserts words into another enactment (which is very common) and the inserted words confer a function. The function is to be regarded as conferred only by the enactment which has been modified (and not by the enactment which inserted the new words into the modified enactment). The effect of this is that (for example) a function conferred by words inserted, by an Act of the Scottish Parliament, into an Act of the UK Parliament is not a relevant function under subsection (2)(b) (as the modified enactment – an Act of the UK Parliament – is not of a type listed in that subsection). The subsection (1) compatibility duty therefore does not apply in relation to such a function.
30.Another example of the operation of section 42(2) is where a function is conferred by words inserted, by an Act of the UK Parliament, into an Act of the Scottish Parliament. Such a function is (unless excluded by subsection (2)(a) due to relating to a reserved matter) a relevant function, and so the subsection (1) compatibility duty applies. However, the further provision made by subsection (4)(b) may also be relevant in such cases and this is explained further below.
Circumstances where incompatible action or failure to act in connection with a relevant function is not unlawful
31.It is not sufficient for an incompatible action or failure to act to relate to a relevant function in order for the action or failure to be unlawful under subsection (1): subsection (1) is also subject to subsection (4). Subsection (4) provides that an incompatible action or failure by a public authority in connection with a relevant function is not unlawful if the public authority was required or entitled to act in the way it did (that is, incompatibly) by words which are not contained in an enactment of a type listed in subsection (2)(b) – that is, by words contained in enactments made by, or by virtue of powers conferred by, the UK Parliament rather than by, or by virtue of powers conferred by, the Scottish Parliament (subsection (4)(a)).
32.Further, subsection (4)(b) provides that the public authority does not act unlawfully if it was required or entitled to act incompatibly by words contained in an enactment that is made by, or by virtue of powers conferred by, the Scottish Parliament if the particular words in question were inserted by an enactment made by, or by virtue of powers conferred by, the UK Parliament.
33.Any requirement or entitlement to act incompatibly which emanates from the UK Parliament will therefore result in a public authority, which is acting in accordance with such a requirement or entitlement, not acting unlawfully under subsection (1). It does not matter for this purpose whether the requirement or entitlement is inserted directly into (for example) an Act of the Scottish Parliament or whether the requirement or entitlement is given effect via an Act of the UK Parliament (for example) making a non-textual modification (or “gloss”) of the Act of the Scottish Parliament.
34.This does not mean that any incompatible action or failure relating to a function conferred by (for example) a provision in an Act of the Scottish Parliament which includes words inserted by (for example) an Act of the UK Parliament is lawful. The requirement or entitlement to act incompatibly must flow from the inserted words in order for subsection (1) not to apply.
Meaning of “public authority”
35.The phrase “public authority” is not exhaustively defined by section 6 and so is to be given its ordinary meaning. The courts have considered in a number of cases the meaning of the phrase “public authority” in the analogous section 6 of the Human Rights Act 1998. Subsection (5)(a) does provide some particular examples of public authorities, with subsections (6) to (8) then providing additional information, in relation to persons mentioned in subsection (5)(a)(iii), as to when functions are of a public nature.
36.Subsection (5)(b) makes provision in relation to the Scottish Parliament, which is specifically excluded from the definition of “public authority” and therefore the compatibility duty. Persons carrying out functions in connection with proceedings in the Scottish Parliament are also excluded from the definition. (But see section 21 (reporting duty on the Scottish Parliament)).
37.By virtue of the definition of “relevant function” in subsection (2), some public authorities will be subject to the section 6 compatibility duty when exercising certain functions and not when exercising other functions. For example, where some of a public authority’s functions relate to reserved matters, those functions are not subject to the compatibility duty by virtue of subsection (2)(a). Similarly, where some of a public authority’s functions are (for example) conferred by an Act of the UK Parliament and some by an Act of the Scottish Parliament, the public authority is only subject to the compatibility duty when acting in relation to functions conferred by the Act of the Scottish Parliament.
Section 7: Proceedings for unlawful acts
38.Section 7 confers the following rights on any person (as defined in schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010):
the right to bring proceedings against a public authority in a civil court or tribunal for acting, or proposing to act, in a way that section 6(1) makes it unlawful for the authority to act;
the right to invoke the UNCRC requirements against a public authority in proceedings before a court or tribunal (for example by highlighting the incompatibility of the authority’s actions with the UNCRC requirements, and hence their unlawfulness, by way of a defence in proceedings brought by the authority against the individual).
39.Subsection (5) requires the Scottish Ministers to bring forward regulations adding to the powers of a tribunal if they think it necessary to do so to ensure that the tribunal can provide an appropriate remedy. Subsection (7) requires them to consult the Commissioner for Children and Young People in Scotland, the Scottish Commission for Human Rights and any other persons they consider it appropriate to consult before laying draft regulations under subsection (5) before the Scottish Parliament. Regulations under subsection (5) are subject to parliamentary scrutiny by way of the affirmative procedure.
40.The right to bring proceedings against a public authority under section 7(1)(a) is subject to the following restrictions:
proceedings cannot be brought against a public authority in relation to any alleged incompatible act that took place before the day that section 7 comes into force, although the UNCRC requirements may be relied upon by a person in proceedings brought by a public authority whenever the act took place, even if the alleged incompatible act took place before the day that section 7 comes into force;
section 10 restricts how proceedings may be brought in respect of judicial acts (see paragraphs 51 to 55 below);
proceedings cannot be brought after the applicable deadline (see below) (subject to the discretion that the court or tribunal in question may have to allow proceedings to be brought after the deadline).
41.The applicable deadline for bringing proceedings against a public authority under section 7(1)(a) will depend on the procedure by which the proceedings are brought. Subsection (9) provides that the proceedings must be brought within a year of the act complained of taking place. But this is subject to subsection (10), the effect of which is that if, under the procedure by which the proceedings are brought, the period within which the proceedings must be brought is less than a year, then the proceedings must be brought within that shorter period. For example, judicial review proceedings are generally subject to a 3-month time limit, therefore proceedings under section 7(1)(a) brought by way of judicial review would have to be brought within 3 months of the act complained of (unless the court exercised its discretion to allow the proceedings to be brought outwith that period).
42.Subsection (11) provides that the clock does not start ticking on the 1-year period specified in subsection (9) until the individual by whom, or on whose behalf, the proceedings are brought turns 18. A court or tribunal can allow proceedings to be brought after the 1-year period has expired if satisfied that it is equitable to do so in the circumstances.
43.Subsection (13) of section 7 deals with the time limit for bringing proceedings under section 7(1)(a) to the supervisory jurisdiction of the Court of Session. Applications to the Court’s supervisory jurisdiction are usually known as judicial review. Subsection (13) amends section 27A of the Court of Session Act 1988 so that the same rule that subsection (11) applies to the calculation of the 1-year time limit under subsection (9) applies to the calculation of the 3-month time limit that section 27A of the 1988 Act sets for applications to the Court’s supervisory jurisdiction. In other words, the clock does not start ticking on that 3-month period until the individual by whom, or on whose behalf, the application to the Court is to be made turns 18. This is subject to section 27A(2) of the 1988 Act, so that where an enactment sets a deadline for bringing judicial review proceedings that is shorter than 3 months, this extension of time will not apply.
Section 8: Judicial remedies
44.Section 8 deals with the remedies that a court or tribunal can grant on finding that a public authority has acted, or was proposing to act, unlawfully under section 6(1).
45.Subsection (1) confirms that the court or tribunal can grant any relief or remedy, or make any order, that it is within its powers to grant or make.(2) The rest of the section is concerned with damages as a remedy (see also section 10(3) on the subject of damages).
46.Subsection (2) sets out that nothing in the Act empowers a court or tribunal to award damages if that court or tribunal does not otherwise have the power to do so.
47.Traditionally damages for wrongs are awarded in Scotland on the basis of trying to put the wronged person back into the position that the person would have been in had the wrong not occurred. Subsection (3) places a duty on courts and tribunals considering whether to award damages for an unlawful act under section 6(1), and how much to award, to consider those questions on the basis of what is necessary to provide just satisfaction to the person. This is the principle on the basis of which damages are awarded under section 8 of the Human Rights Act 1998.
48.Subsection (4) applies section 3 (contribution among joint wrongdoers) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 to any award of damages under this section. Equivalent provision is contained in section 8(5)(a) of the Human Rights Act 1998.
49.Subsection (5) precludes an award of damages from being made to the Commissioner for Children and Young People in Scotland or the Scottish Commission for Human Rights.
Section 9: Child’s views on effectiveness of reliefs etc.
50.Section 9 requires the court or tribunal, when considering what relief or remedy to grant or what order to make, to give the child an opportunity (so far as practicable) to express views about the effectiveness of that measure and to have regard to those views. But the court or tribunal need not do so if satisfied that the child has been shown to be incapable of forming a view.
Section 10: Restriction on proceedings in respect of judicial acts
51.Courts and tribunals are public authorities for the purposes of section 6 and so require to comply with the duty imposed by section 6(1). Thus if a court or tribunal makes a decision that is unlawful under that section during, or at the conclusion of, a case before it, that judicial act may itself be challenged in further proceedings before a court or tribunal under section 7(1)(a).
52.There are established processes for challenging the judicial acts of courts and tribunals, and section 10(1) and (2) require that they be used. For example, it would not be appropriate for a sentencing decision taken at the conclusion of a criminal trial by the High Court of Justiciary, Scotland’s supreme criminal court, to be challenged by way of a civil action for damages in the sheriff court, which is lower in the judicial hierarchy. Any complaint that the High Court made an error while sitting as a trial court, including an error by acting unlawfully under section 6(1), should properly be dealt with by way of an appeal to the High Court.
53.Section 10(1) mentions the possibility of challenging a judicial act through any right of appeal or by application to the supervisory jurisdiction of the Court of Session. Subsection (2) makes clear that subsection (1) is not to be read as allowing an application to the Court’s supervisory jurisdiction that would otherwise be impermissible. For example, it is not to be taken to allow an application to be made to the Court of Session, Scotland’s supreme civil court, contesting a decision taken in an appeal in a criminal case by the High Court.
54.Paragraph (c) of section 10(1) allows for the possibility of court rules providing a new process to challenge a judicial act that is alleged to be unlawful under section 6(1) should a need be identified to have a process for that besides the ordinary processes referred to in paragraphs (a) and (b). Section 44 makes further provision about court rules.
55.Section 10(3) prevents damages from being awarded against a court or tribunal if the impugned judicial act was done in good faith (on the subject of damages generally, see section 8).
Section 11: Power for Commissioner to bring or intervene in proceedings
56.The Commissioner for Children and Young People in Scotland is an office established by the Commissioner for Children and Young People (Scotland) Act 2003. Being a statutory office, the Commissioner can only do those things that statute empowers the Commissioner to do. Section 11 of the Act amends section 4 of the 2003 Act so that the following are included amongst the things that the Commissioner is empowered to do:
bringing proceedings in a court or tribunal on the grounds that a public authority has acted, or proposes to act, unlawfully under section 6(1);
intervening in court or tribunal proceedings in which someone else is levelling that charge against a public authority.
Section 12: Power for Scottish Commission for Human Rights to bring or intervene in proceedings
57.The Scottish Commission for Human Rights is a body established by the Scottish Commission for Human Rights Act 2006. Section 12 inserts a new section into that Act to empower the Commission to bring or intervene in proceedings in the same way that section 11 empowers the Commissioner for Children and Young People in Scotland.
Section 13: Guidance on this Part
58.Section 13 requires the Scottish Ministers to issue guidance to support the operation and implementation of Part 2 of the Act. Subsection (2) contains a non-exhaustive list of things that the guidance may do. Before issuing guidance under section 13 for the first time, or issuing any revised guidance, the Scottish Ministers must consult children, the Commissioner for Children and Young People in Scotland, the Scottish Commission for Human Rights and such other persons as they consider appropriate.
Common law functions relating to devolved matters, in contrast, are “relevant functions” by virtue of subsection (2)(b)(iv).
But see also section 33 of the Children (Care and Justice) (Scotland) Act 2024, which adds a new subsection (6) into section 8, noting that the court’s power under section 8(1) is modified, in certain cases involving UNCRC compatibility issues in criminal proceedings, by section 288BZA of the Criminal Procedure (Scotland) Act 1995.
