Overview of the Act
Part 2: Duties on Public Authorities
Section 7: Proceedings for unlawful acts
38.Section 7 confers the following rights on any person (as defined in schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010):
the right to bring proceedings against a public authority in a civil court or tribunal for acting, or proposing to act, in a way that section 6(1) makes it unlawful for the authority to act;
the right to invoke the UNCRC requirements against a public authority in proceedings before a court or tribunal (for example by highlighting the incompatibility of the authority’s actions with the UNCRC requirements, and hence their unlawfulness, by way of a defence in proceedings brought by the authority against the individual).
39.Subsection (5) requires the Scottish Ministers to bring forward regulations adding to the powers of a tribunal if they think it necessary to do so to ensure that the tribunal can provide an appropriate remedy. Subsection (7) requires them to consult the Commissioner for Children and Young People in Scotland, the Scottish Commission for Human Rights and any other persons they consider it appropriate to consult before laying draft regulations under subsection (5) before the Scottish Parliament. Regulations under subsection (5) are subject to parliamentary scrutiny by way of the affirmative procedure.
40.The right to bring proceedings against a public authority under section 7(1)(a) is subject to the following restrictions:
proceedings cannot be brought against a public authority in relation to any alleged incompatible act that took place before the day that section 7 comes into force, although the UNCRC requirements may be relied upon by a person in proceedings brought by a public authority whenever the act took place, even if the alleged incompatible act took place before the day that section 7 comes into force;
section 10 restricts how proceedings may be brought in respect of judicial acts (see paragraphs 51 to 55 below);
proceedings cannot be brought after the applicable deadline (see below) (subject to the discretion that the court or tribunal in question may have to allow proceedings to be brought after the deadline).
41.The applicable deadline for bringing proceedings against a public authority under section 7(1)(a) will depend on the procedure by which the proceedings are brought. Subsection (9) provides that the proceedings must be brought within a year of the act complained of taking place. But this is subject to subsection (10), the effect of which is that if, under the procedure by which the proceedings are brought, the period within which the proceedings must be brought is less than a year, then the proceedings must be brought within that shorter period. For example, judicial review proceedings are generally subject to a 3-month time limit, therefore proceedings under section 7(1)(a) brought by way of judicial review would have to be brought within 3 months of the act complained of (unless the court exercised its discretion to allow the proceedings to be brought outwith that period).
42.Subsection (11) provides that the clock does not start ticking on the 1-year period specified in subsection (9) until the individual by whom, or on whose behalf, the proceedings are brought turns 18. A court or tribunal can allow proceedings to be brought after the 1-year period has expired if satisfied that it is equitable to do so in the circumstances.
43.Subsection (13) of section 7 deals with the time limit for bringing proceedings under section 7(1)(a) to the supervisory jurisdiction of the Court of Session. Applications to the Court’s supervisory jurisdiction are usually known as judicial review. Subsection (13) amends section 27A of the Court of Session Act 1988 so that the same rule that subsection (11) applies to the calculation of the 1-year time limit under subsection (9) applies to the calculation of the 3-month time limit that section 27A of the 1988 Act sets for applications to the Court’s supervisory jurisdiction. In other words, the clock does not start ticking on that 3-month period until the individual by whom, or on whose behalf, the application to the Court is to be made turns 18. This is subject to section 27A(2) of the 1988 Act, so that where an enactment sets a deadline for bringing judicial review proceedings that is shorter than 3 months, this extension of time will not apply.
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