PART XIII U.K. Miscellaneous

[F1 Convention rights F2 ... compatibility issues [F3 , devolution issues and UNCRC compatibility issues]] S

Textual Amendments

F1 Cross-heading substituted (22.4.2013) by Scotland Act 2012 (c. 11), ss. 34(2), 44(5); S.I. 2013/6, art. 2(a)

F2 Words in s. 288ZA cross-heading omitted (31.3.2022) by virtue of The European Union (Withdrawal) Act 2018 (Repeal of EU Restrictions in Devolution Legislation, etc.) Regulations 2022 (S.I. 2022/357), regs. 1(1), 5(2)

F3 Words in s. 288ZA cross-heading substituted (16.7.2024) by United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (asp 1), ss. 32(2), 47(2)(a) (with s. 43)

[F4 288AB References of UNCRC compatibility issues to the High Court or Supreme Court S

(1) In this section and section 288AC, “UNCRC compatibility issue” means a question, arising in criminal proceedings as to—

(a) whether words in an enactment to which section 29 or 30 of the UNCRC Incorporation Act applies give rise to an incompatibility with the UNCRC requirements,

(b) whether a public authority has acted (or proposed to act) in a way which is made unlawful by section 6(1) of the UNCRC Incorporation Act.

(2) In subsection (1)—

• “public authority” has the same meaning as in section 6(5) of the UNCRC Incorporation Act,

• “the UNCRC requirements” has the meaning given in section 1(2) of that Act,

• “UNCRC Incorporation Act” means the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024.

(3) Where a UNCRC compatibility issue has arisen in criminal proceedings before a court, other than a court consisting of 2 or more judges of the High Court, the court may, instead of determining it, refer the issue to the High Court.

(4) The Lord Advocate, if a party to criminal proceedings before a court, other than a court consisting of 2 or more judges of the High Court, may require the court to refer to the High Court any UNCRC compatibility issue which has arisen in the proceedings.

(5) The High Court may, instead of determining a UNCRC compatibility issue referred to it under subsection (4), refer it to the Supreme Court.

(6) Where a UNCRC compatibility issue has arisen in criminal proceedings before a court consisting of 2 or more judges of the High Court, otherwise than on a reference, the court may, instead of determining it, refer it to the Supreme Court.

(7) The Lord Advocate, if a party to criminal proceedings before a court consisting of 2 or more judges of the High Court, may require the court to refer to the Supreme Court any UNCRC compatibility issue which has arisen in the proceedings otherwise than on a reference.

(8) On a reference to the Supreme Court under this section—

(a) the powers of the Supreme Court are exercisable only for the purpose of determining the UNCRC compatibility issue,

(b) for that purpose the Court may make any change in the formulation of that issue that it thinks necessary in the interests of justice.

(9) When it has determined a compatibility issue on a reference under this section, the Supreme Court must remit the proceedings to the High Court.

(10) An issue referred to the High Court or the Supreme Court under this section is referred to it for determination.]

Textual Amendments

F4 Ss. 288AB, 288AC inserted (16.7.2024) by United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (asp 1), ss. 32(3), 47(2)(a) (with s. 43)