United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024

United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024

2024 asp 1

Overview of the Act

Part 4: Legislation and the Uncrc Requirements

Section 24: Interpretation of legislation

88. Section 24(1) requires that words in certain types of legislation must, if possible, be given an interpretation that is compatible with the UNCRC requirements. This interpretative obligation is analogous to the obligation created by section 3 of the Human Rights Act 1998, the effect of which has been the subject of judicial consideration in a number of cases (see for example Ghaidan v Godin-Mendoza [2004] UKHL 30).

89. The interpretative obligation under subsection (1) applies to the following:

• words in Acts of the Scottish Parliament to which section 29 applies, and

• words in subordinate legislation to which section 30 applies.

90. See paragraphs 114 to 121 below for further discussion of those sections. Broadly speaking, the interpretative obligation under subsection (1), as read with sections 29 and 30, only applies to words enacted by the Scottish Parliament, or enacted by virtue of the Scottish Parliament delegating its power to make legislation. Such words require, so far as it is possible to do so, to be read and given effect in a way that is compatible with the UNCRC requirements (while, for example, words inserted into an Act of the Scottish Parliament by an Act of the UK Parliament, do not).

91. Subsection (2) provides that the requirement to (so far as possible) read and give effect to legislation in a way that is compatible with the UNCRC requirements has no effect on the validity, continuing operation or enforcement of any incompatible Act of the Scottish Parliament or any incompatible subordinate legislation made by virtue of an Act of the Scottish Parliament (provided in the latter case that removal of the incompatibility is prevented by provision in that Act or in a UK enactment).

92. If a court finds it impossible to read words to which the interpretative obligation under subsection (1) applies in a way that is compatible with the UNCRC requirements, it can (depending on when the words in question were enacted) make a strike down declarator under section 25 or an incompatibility declarator under section 26.