23.The 2024 Act incorporates the UNCRC into Scots law. Section 6(1) of the 2024 Act provides that public authorities act unlawfully if they act, or fail to act, in connection with a relevant function in a way that is incompatible with the UNCRC requirements – i.e. the rights and obligations from the convention set out in the schedule of the 2024 Act. Effectively, therefore, it imposes a duty on public authorities to act compatibly with the UNCRC requirements when exercising relevant functions.
24.Even where a relevant function is being carried out, however, an incompatible action or failure to act is not unlawful in certain, limited circumstances. See section 6(4), which provides that an incompatible action or failure by a public authority in connection with a relevant function is not unlawful if the public authority was required or entitled to act in the way it did (that is, incompatibly) by words which are not contained in an enactment of a type listed in section 6(2)(b) – that is, by words contained in enactments made by, or by virtue of powers conferred by, the UK Parliament rather than by, or by virtue of powers conferred by, the Scottish Parliament.
25.Further, section 6(4)(b) provides that the public authority does not act unlawfully if it was required or entitled to act incompatibly by words contained in an enactment that is made by, or by virtue of powers conferred by, the Scottish Parliament if the particular words in question were inserted by an enactment made by, or by virtue of powers conferred by, the UK Parliament.
26.Therefore under section 6(4) any requirement or entitlement to act incompatibly which emanates from the UK Parliament will result in a public authority, which is acting in accordance with such a requirement or entitlement, not acting unlawfully.
27.Section 3 of the Act takes the existing text of section 6(4) of the 2024 Act and replicates it, with no changes to legal effect, as section 6A.
28.Section 3 of the Act then adds, as section 6B of the 2024 Act, a further exception to the general duty in section 6(1) of the 2024 Act for public authorities to act compatibly with the UNCRC requirements. The effect of section 6B is that an incompatible action or failure by a public authority in connection with a relevant function is not unlawful if, as the result of words in an Act of the Scottish Parliament or in Scottish subordinate legislation which are not derived from a UK enactment, the public authority was required to act in that way – that is, the authority was compelled to act incompatibly by another statutory duty placed upon it. However, the exception only applies to subordinate legislation where the Act of the Scottish Parliament under which it was made prevents removal of the incompatibility – in other words, the incompatibility with the UNCRC requirements is mandated by the parent Act.
29.Section 24(1) of the 2024 Act still requires words in an Act of the Scottish Parliament or in Scottish subordinate legislation which are not derived from a UK enactment to be read and given effect in a way which is compatible with the UNCRC requirements so far as it possible to do so. The legal purpose of section 6B is thus to remove the potential for public authorities to have to decide whether to act in a way that puts them in breach of the compatibility duty in the 2024 Act, or to act in a way that puts them in breach of another legal duty in devolved legislation, in cases where it is not possible to read and give effect to legislation in compliance with section 24(1).
30.The references to the definition of “words” in sections 29 and 30 of the 2024 Act have the effect of excluding from the scope of the new exception words in Acts of the Scottish Parliament or in Scottish subordinate legislation which are inserted by UK enactments – this is in order to avoid duplicating the effect of section 6A(b).
31.Section 3(5) adds, as section 18A of the 2024 Act, a requirement for authorities listed in section 19 of the 2024 Act to notify the Scottish Ministers, the Commissioner for Children and Young People in Scotland and the Scottish Commission for Human Rights where the listed authority is of the view that it is not possible for the authority to comply with the requirement in section 24 of the 2024 Act (described in subsection (2) of new section 18A) in relation to a relevant function and that, as a result, section 6B of the 2024 Act applies in relation to the exercise (or potential exercise) of that function. Notifications under section 18A are to be given as soon as reasonably practicable.
32.Section 3(7) adds, as section 34A of the 2024 Act, a requirement that the Lord Advocate, the Commissioner for Children and Young People in Scotland and the Scottish Commission for Human Rights are to be given intimation of any question before a court or tribunal as to whether the new section 6B applies to the way a public authority has acted or proposed to act (unless they are already party to the proceedings, as in that case they would already be aware of the question). They may then give notice to take part as a party in the proceedings so far as the proceedings relate to that question. This ensures that the Lord Advocate, the Commissioner for Children and Young People in Scotland and the Scottish Commission for Human Rights are aware of every case in which the new section 6B is relied on in a court or tribunal and can choose to intervene.
33.Section 3(8) adds reference to the new section 34A(2) to section 38 of the 2024 Act so that any additional expenses incurred by any party to the proceedings as a result of such participation can be taken into account by a court or tribunal.
34.Section 3(4) amends section 16 of the 2024 Act, about reviewing and reporting on the Children’s Rights Scheme, to require reports to contain a summary of any notifications received by the Scottish Ministers under new section 18A and any intimations received by the Lord Advocate under new section 34A. The Scottish Ministers’ existing duty under section 16 to provide a summary of any actions they intend to take is expanded to add any actions that they intend to take in relation to those notifications and intimations.
Commentary on Provisions Part 2 – United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024: Circumstances where incompatible action or failure to act is not unlawful Section 3: United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024: circumstances where incompatible action or failure to act is not unlawful