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.
