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.
