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.
Common law functions relating to devolved matters, in contrast, are “relevant functions” by virtue of subsection (2)(b)(iv).
