3United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024: circumstances where incompatible action or failure to act is not unlawful(1)

The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 is modified as follows.

(2)

In section 6 (acts of public authorities to be compatible with the UNCRC requirements)—

(a)

in subsection (1), for “subsection (4)” insert “sections 6A and 6B”,

(b)

subsection (4) is repealed.

(3)

After section 6 insert—

6ANo unlawfulness where incompatible action or failure to act relies on UK enactment

Section 6(1) does not make unlawful doing or failing to do something if the public authority was required or entitled to act in that way by words that—

(a)

are not contained in an enactment of a kind mentioned in section 6(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 section 6(2)(b).

6BNo unlawfulness where incompatible action or failure to act relies on Scottish enactment(1)

Section 6(1) does not make unlawful doing or failing to do something if the public authority was required to act in that way by words in an Act of the Scottish Parliament to which section 29 applies.

(2)

Section 6(1) does not make unlawful doing or failing to do something if—

(a)

the public authority was required to act in that way by words in a Scottish statutory instrument to which section 30 applies, and

(b)

(disregarding any possibility of revocation) the Act of the Scottish Parliament under which the Scottish statutory instrument was made prevents removal of the incompatibility with the UNCRC requirements.

(4)

In section 16 (reviewing and reporting on the Scheme), in subsection (3)—

(a)

after paragraph (a) insert—(aa)

a summary of—

(i)

any notifications relating to the application of section 6B received by the Scottish Ministers under section 18A(1), and

(ii)

any intimations relating to the application of section 6B received by the Lord Advocate under section 34A(1),

(b)

in paragraph (c), after “period” insert “, including any actions that they intend to take in relation to the notifications and intimations mentioned in paragraph (aa)”.

(5)

After section 18 insert—

18ANotification by listed authorities of application of section 6B(1)

Where a listed authority is of the view that, in relation to the exercise of a relevant function—

(a)

it is not possible to comply with the section 24 requirement, and

(b)

as a result, section 6B applies in connection with the exercise, or potential exercise, of that relevant function,

it must notify the Scottish Ministers, the Commissioner for Children and Young People in Scotland and the Scottish Commission for Human Rights of that view as soon as reasonably practicable.

(2)

In this section—

“listed authority” means an authority listed in section 19,

“relevant function” has the meaning given in section 6(2),

“section 24 requirement” is the requirement in section 24(1) to read and give effect to the words mentioned in paragraphs (a) and (b) of that subsection in a way which is compatible with the UNCRC requirements.

(6)

In section 19 (listed authorities), in subsection (1), for “section 18(1)” substitute “sections 18(1) and 18A(1)”.

(7)

After section 34 insert—

34APower to intervene in proceedings where section 6B is raised(1)

Where a question arises in any proceedings before a court or tribunal as to whether section 6B applies to the way in which a public authority has acted (or proposed to act), intimation of that is to be given to the Lord Advocate, the Commissioner for Children and Young People in Scotland and the Scottish Commission for Human Rights (unless the person to whom the intimation would be given is a party to the proceedings).

(2)

A person to whom intimation is given under subsection (1) may, on giving notice, take part as a party in the proceedings so far as the proceedings relate to that question.

(8)

In section 38 (additional expenses), in subsection (3), for “or 34(2)” substitute “, 34(2) or 34A(2)”.