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).
