Part 4: Legislation and the Uncrc Requirements
85.Part 4 deals with legislation’s compatibility with the UNCRC requirements, as defined by section 1. In particular, the Part:
makes provision about the making of statements, in relation to primary and secondary legislation, about compatibility with the UNCRC requirements;
provides that certain words (whenever enacted) in legislation made by, or by virtue of power conferred by, the Scottish Parliament are to be interpreted in a way that is consistent with the UNCRC requirements where possible;
allows a court which finds that such words cannot be interpreted consistently with the UNCRC requirements to either (depending on when the incompatible words were enacted) strike the words down or declare them to be incompatible with the UNCRC requirements.
Section 23: Statements of compatibility in relation to legislation
86.Subsection (1) of section 23 requires all Public Bills introduced to the Scottish Parliament to be accompanied by a statement from the member introducing the Bill about the extent to which it is compatible with the UNCRC requirements. “Public Bill” is defined by Rule 9.1 of the Scottish Parliament’s Standing Orders.
87.Subsection (2) creates an equivalent rule for a statement where the Scottish Ministers make a Scottish statutory instrument other than one bringing primary legislation into force. The phrase “Scottish statutory instrument” is defined by section 27 of the Interpretation and Legislative Reform (Scotland) Act 2010.
Section 24: Interpretation of legislation
88.Section 24(1) requires that words in certain types of legislation must, if possible, be given an interpretation that is compatible with the UNCRC requirements. This interpretative obligation is analogous to the obligation created by section 3 of the Human Rights Act 1998, the effect of which has been the subject of judicial consideration in a number of cases (see for example Ghaidan v Godin-Mendoza [2004] UKHL 30).
89.The interpretative obligation under subsection (1) applies to the following:
words in Acts of the Scottish Parliament to which section 29 applies, and
words in subordinate legislation to which section 30 applies.
90.See paragraphs 114 to 121 below for further discussion of those sections. Broadly speaking, the interpretative obligation under subsection (1), as read with sections 29 and 30, only applies to words enacted by the Scottish Parliament, or enacted by virtue of the Scottish Parliament delegating its power to make legislation. Such words require, so far as it is possible to do so, to be read and given effect in a way that is compatible with the UNCRC requirements (while, for example, words inserted into an Act of the Scottish Parliament by an Act of the UK Parliament, do not).
91.Subsection (2) provides that the requirement to (so far as possible) read and give effect to legislation in a way that is compatible with the UNCRC requirements has no effect on the validity, continuing operation or enforcement of any incompatible Act of the Scottish Parliament or any incompatible subordinate legislation made by virtue of an Act of the Scottish Parliament (provided in the latter case that removal of the incompatibility is prevented by provision in that Act or in a UK enactment).
92.If a court finds it impossible to read words to which the interpretative obligation under subsection (1) applies in a way that is compatible with the UNCRC requirements, it can (depending on when the words in question were enacted) make a strike down declarator under section 25 or an incompatibility declarator under section 26.
Section 25: Strike down declarators
93.Section 25 allows a court to strike down certain words in legislation (see paragraphs 99 to 103 below) if it finds them to be incompatible with the UNCRC requirements, which necessarily means that the court was unable to find a way to interpret the words compatibly with those requirements in accordance with section 24.
Effect of striking down legislation
94.The effect of striking down words in legislation under section 25 is as follows:
from the point at which they are struck down, the words no longer form part of Scots law. They are not, however, to be treated as never having formed part of Scots law and so anything lawfully done under the words before they were struck down is not rendered unlawful retrospectively.
the Scottish Ministers’ duty to make a statement to the Scottish Parliament under section 28 is triggered.
Suspension of effect of strike down
95.A court may, if it considers it appropriate to do so when making a strike down declarator, delay its taking effect so that, for example, the words can remain in force while steps are taken to remedy their incompatibility with the UNCRC requirements (subsection (5)). Steps to remedy an incompatibility may, for example, involve the Scottish Ministers amending the legislation in question through remedial regulations under section 39.
96.As there may be a call for remedial action to be taken ahead of legislation being struck down, and to ensure that before deciding to strike words down the court is appraised of the wider public interest ramifications, subsections (7) and (8) require that where a court is considering suspending the effect of a strike down declarator the Lord Advocate, who is the Scottish Government’s senior law officer, be informed and given an opportunity to make representations to the court. If the Lord Advocate’s involvement results in the litigation becoming more expensive than it would otherwise have been, section 38 allows the court to award expenses to the party who incurred them (whatever the outcome).
Courts that can strike legislation down
97.The power to make a strike down declarator is exercisable by:
the Supreme Court of the United Kingdom,
the Court of Session, which is Scotland’s supreme civil court,
the High Court of Justiciary, which is Scotland’s supreme criminal court, but the High Court can only exercise the strike down power when it is not sitting as a trial court (which means it can do so when, for example, acting as an appeal court).
Procedure to be followed before striking down
98.Before making a strike down declarator the court must afford the Lord Advocate, the Commissioner for Children and Young People in Scotland and the Scottish Commission for Human Rights an opportunity to make representations (see section 27).
Words that are susceptible to strike down
99.Words in legislation are only susceptible to being struck down under section 25 if they are in either:
a pre-commencement Act of the Scottish Parliament (in which case, section 29 also needs to apply to the words in order for them to be struck down), or
subordinate legislation made by virtue of a pre-commencement Act of the Scottish Parliament (in which case section 30 also needs to apply to the words in order for them to be struck down).
100.See paragraphs 114 to 121 below for further discussion of sections 29 to 30. Broadly speaking, those sections ensure that only words enacted by, or by virtue of a power conferred by, the Scottish Parliament can be struck down (subject also to the qualifications set out in section 25 as to when the words must have been enacted in order to be susceptible to strike down).
101.Section 25(10) provides that, in order to be a pre-commencement Act of the Scottish Parliament, the Bill for the Act must have received Royal Assent before the day on which section 25 comes into force (so before 16 July 2024). In addition, the references to pre-commencement Acts of the Scottish Parliament in section 25 (and also section 26) are references to the Act in question as it stood on the day on which section 25 comes into force (so, for example, words inserted into the Act after the day section 25 comes into force cannot be struck down). Where incompatible words are words to which section 29 applies but which cannot be struck down under section 25 due to the Bill for the Act of the Scottish Parliament in which they appear having received Royal Assent on or after the day on which section 25 comes into force, or due to the words having been inserted into the Act on or after that date, a court may instead make an incompatibility declarator in relation to the words (see section 26).
102.Whereas words in Acts of the Scottish Parliament can only be struck down if enacted before section 25 comes into force, words in subordinate legislation are susceptible to being struck down whenever the subordinate legislation is made. Subordinate legislation, in this context, means subordinate legislation made by virtue of a pre-commencement Act of the Scottish Parliament (as discussed above). So, for example, words in regulations made by the Scottish Ministers in exercise of regulation-making powers contained in an Act of the Scottish Parliament enacted before section 25 comes into force could be struck down under section 25, despite the regulations themselves being made on or after the day section 25 came into force.
103.Section 25(3) sets out some additional limitations on when words in subordinate legislation may be struck down. Firstly, the Act of the Scottish Parliament by virtue of which the subordinate legislation is made must prevent removal of the incompatibility. Secondly, the words cannot be struck down if words in a UK enactment prevent removal of the incompatibility.
Section 26: Incompatibility declarators
104.Section 26 allows a court to declare certain words in legislation (see paragraph 108 below) to be incompatible with the UNCRC requirements, where it has found it impossible to interpret the words compatibly with those requirements in accordance with section 24.
105.An incompatibility declarator triggers the Scottish Ministers’ duty to make a statement to the Scottish Parliament under section 28. Legislative words declared to be incompatible with the UNCRC requirements under this section remain the law unless and until legislative action is taken in relation to them.
106.The power to make an incompatibility declarator is exercisable by the same courts that can make a strike down declarator (see section 25(11) and paragraph 97 above).
107.Before making an incompatibility declarator the court must afford the Lord Advocate, the Commissioner for Children and Young People in Scotland and the Scottish Commission for Human Rights an opportunity to make representations (see section 27).
108.The words in legislation in respect of which an incompatibility declarator can be made are words which originate from the Scottish Parliament but which cannot be struck down under section 25, due to the time of their enactment. In other words, an incompatibility declarator can be made in respect of:
words in a post-commencement Act of the Scottish Parliament (that is, an Act of the Scottish Parliament which received Royal Assent on or after the day on which section 26 came into force – so on or after 16 July 2024). Section 29 also needs to apply to the words in order for them to be declared incompatible.
words inserted, on or after the day on which section 25 came into force (also 16 July 2024), into a pre-commencement Act of the Scottish Parliament (that is, an Act of the Scottish Parliament which received Royal Assent before that day). Again, section 29 also needs to apply to the words in order for them to be declared incompatible.
words in subordinate legislation made by virtue of a power conferred by a post-commencement Act of the Scottish Parliament. In this case, section 30 also needs to apply to the words in order for them to be declared incompatible.
words in subordinate legislation made by virtue of a power inserted, on or after the day on which section 25 came into force, into a pre-commencement Act of the Scottish Parliament. Again, section 30 also needs to apply to the words in order for them to be declared incompatible.
109.Section 26(3) sets out equivalent additional limitations on the power to declare words in subordinate legislation incompatible as are set out in section 25(3) in relation to the power to strike down incompatible words in subordinate legislation.
Section 27: Power to intervene in proceedings where strike down declarator or incompatibility declarator is being considered
110.Section 27 requires a court considering making a strike down declarator or an incompatibility declarator to afford the following persons an opportunity to make representations to it:
the Lord Advocate, who is the Scottish Government’s senior law officer,
the Commissioner for Children and Young People in Scotland,
the Scottish Commission for Human Rights.
111.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 28: Ministerial action following strike down declarator or incompatibility declarator
112.Section 28 sets out what the Scottish Ministers must do in the event that a strike down declarator (under section 25) or an incompatibility declarator (under section 26) is made.
113.It requires the Scottish Ministers, within 6 months of the declarator being made, to:
report publicly on what (if anything) they intend to do in response to the declarator;
seek to make a statement to the Scottish Parliament on the matter (the Scottish Ministers do not control the scheduling of business in the Scottish Parliament and so can only seek to make a statement within the 6-month period).
Sections 29 and 30: Words in legislation to which Part 4 applies
114.The principal purpose of sections 29 and 30 is to ensure that sections 24 to 26 do not apply to legislation originating from the UK Parliament.(3)
115.One effect of this is to exclude (for example) any words in an Act of the Scottish Parliament which relate to reserved matters (or which are otherwise outside the legislative competence of the Scottish Parliament in terms of section 29(2) of the Scotland Act 1998). In order to be law, such words must have been inserted into the Act of the Scottish Parliament by legislation made by, or by virtue of power conferred by, the UK Parliament (meaning that section 29 would not apply to the words).(4) But UK legislation relating to devolved matters (whether enacted before or after the establishment of the Scottish Parliament in 1999) is also excluded from the application of sections 24 to 26, due to originating from the UK Parliament.
116.For the purposes of sections 29 and 30, words inserted, by legislation made by, or by virtue of power conferred by, the Scottish Parliament, into legislation originating from the UK Parliament are not considered to be “in” the Act of the Scottish Parliament or (as the case may be) Scottish statutory instrument which inserted them into the UK legislation. This is because the words are only ever operative as part of the UK legislation into which they are inserted. Such words are therefore considered to form part of the UK legislation into which they are inserted. This means that sections 24 to 26 do not apply in relation to (for example) a new section inserted by an Act of the Scottish Parliament into (for example) the Education (Scotland) Act 1980, since the new section is considered to form part of the 1980 Act (which is excluded from the application of sections 24 to 26, due to having originated from the UK Parliament).
117.Following the same principle, words inserted, by legislation made by, or by virtue of power conferred by, the UK Parliament, into (for example) an Act of the Scottish Parliament do form part of that Act of the Scottish Parliament. But sections 29 and 30 ensure that sections 24 to 26 do not apply in relation to such words, as explained below.
Section 29: Primary legislation words to which this Part applies
118.The words to which section 29 applies are words in an Act of the Scottish Parliament – but only if they are in the Act because:
they are the Act’s original words (that is, they were included in the Bill for the Act when it was passed by the Scottish Parliament, rather than being inserted later),
they are words inserted into the Act by the original words of another Act of the Scottish Parliament, or
they are words inserted into the Act by subordinate legislation made under a power conferred by a provision which does not derive from an Act of the UK Parliament (essentially, therefore, words inserted by subordinate legislation made under a power conferred by the Scottish Parliament).
119.Words inserted into an Act of the Scottish Parliament by an Act of the UK Parliament, or subordinate legislation made under such an Act, are therefore not subject to the interpretative duty set out in section 24(1) (and so do not require to be read and given effect in a way that is compatible with the UNCRC requirements, whether that is possible or not). Such words also cannot be struck down under section 25 or declared incompatible under section 26.
Section 30: Subordinate legislation words to which this Part applies
120.Section 30 makes equivalent provision in relation to words in subordinate legislation to that made in relation to words in primary legislation by section 29. That is, for section 30 to apply to them, words must be contained in a Scottish statutory instrument originally made wholly or partly under a power conferred by a provision which does not derive from an Act of the UK Parliament (essentially, therefore, an instrument made wholly or partly under a power conferred by the Scottish Parliament). In addition, the words must be contained in the instrument:
as a result of the exercise of a power conferred by the Scottish Parliament – although it does not matter whether the words were contained in the instrument as originally made or subsequently inserted into the instrument by a subsequent exercise of the same or a different power conferred by the Scottish Parliament, or
as a result of being inserted into the instrument by words to which section 29 applies (so words inserted into the instrument by, for example, an Act of the UK Parliament would not count as words to which section 30 applies).
121.The effect of this is that words contained in a Scottish statutory instrument by virtue of the exercise of a power conferred by the UK Parliament (including where that power is exercised by the Scottish Ministers) or by virtue of being directly inserted by an Act of the UK Parliament are not subject to the interpretative duty set out in section 24(1) (and so do not require to be read and given effect in a way that is compatible with the UNCRC requirements). Such words also cannot be struck down under section 25 or declared incompatible under section 26.
This is in response to the Supreme Court judgment in the Reference by the Attorney General and the Advocate General for Scotland – United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill [2021] UKSC 42), which found that sections 24 to 26, in the form in which they originally appeared in the “
This is because, under section 29(1) of the Scotland Act, an Act of the Scottish Parliament which purported to contain provision, enacted by the Scottish Parliament, relating to a reserved matter would not, to the extent it exceeded the Scottish Parliament’s legislative competence, be law.
