European Charter of Local Self-Government (Incorporation) (Scotland) Act 2026

2 Duty to act compatibly with the Charter Articles

(1) The Scottish Ministers must ensure that any action they take in exercise of a relevant function is compatible with the Charter Articles (but see subsection (4)).

(2) In subsection (1), a “relevant function” means a function that—

(a) is within devolved competence (within the meaning of section 54 of the Scotland Act 1998), and

(b) is conferred by—

(i) an Act of the Scottish Parliament,

(ii) a Scottish statutory instrument originally made wholly under a relevant enabling power,

(iii) a provision in a Scottish statutory instrument originally made partly under a relevant enabling power, provided that the provision itself was either—

(A) originally made under the relevant enabling power, or

(B) inserted into the instrument by an Act of the Scottish Parliament or subordinate legislation made under a relevant enabling power, or

(iv) a rule of law not created by an enactment.

(3) In subsection (2), “relevant enabling power” means a power to make subordinate legislation conferred by a provision in an enactment of a kind mentioned in that subsection, unless the provision was inserted by an enactment of a kind that is not mentioned in that subsection.

(4) The Scottish Ministers do not fail to comply with subsection (1) by taking an action in exercise of a relevant function which is incompatible with the Charter Articles if they were required or entitled to take the incompatible action by words that—

(a) are not contained in an enactment of a kind mentioned in subsection (2)(b), or

(b) are contained in such an enactment having been inserted into it by an enactment of a kind that is not mentioned in subsection (2)(b).

(5) For the purposes of this section—

(a) “function” includes the making of subordinate legislation but does not include the preparation or introduction of, or the exercise of other functions in relation to, a Bill for an Act of the Scottish Parliament,

(b) a function conferred by words inserted by one enactment into another enactment (“the modified enactment”) is to be regarded as conferred only by the modified enactment,

(c) a failure to act (including a failure to make subordinate legislation) is to be treated as the taking of action.