16 January 2024
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.
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.
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).
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).
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).
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.