16 January 2024
104.Section 26 allows a court to declare certain words in legislation (see paragraph 108 below) to be incompatible with the UNCRC requirements, where it has found it impossible to interpret the words compatibly with those requirements in accordance with section 24.
105.An incompatibility declarator triggers the Scottish Ministers’ duty to make a statement to the Scottish Parliament under section 28. Legislative words declared to be incompatible with the UNCRC requirements under this section remain the law unless and until legislative action is taken in relation to them.
106.The power to make an incompatibility declarator is exercisable by the same courts that can make a strike down declarator (see section 25(11) and paragraph 97 above).
107.Before making an incompatibility declarator the court must afford the Lord Advocate, the Commissioner for Children and Young People in Scotland and the Scottish Commission for Human Rights an opportunity to make representations (see section 27).
108.The words in legislation in respect of which an incompatibility declarator can be made are words which originate from the Scottish Parliament but which cannot be struck down under section 25, due to the time of their enactment. In other words, an incompatibility declarator can be made in respect of:
words in a post-commencement Act of the Scottish Parliament (that is, an Act of the Scottish Parliament which received Royal Assent on or after the day on which section 26 came into force – so on or after 16 July 2024). Section 29 also needs to apply to the words in order for them to be declared incompatible.
words inserted, on or after the day on which section 25 came into force (also 16 July 2024), into a pre-commencement Act of the Scottish Parliament (that is, an Act of the Scottish Parliament which received Royal Assent before that day). Again, section 29 also needs to apply to the words in order for them to be declared incompatible.
words in subordinate legislation made by virtue of a power conferred by a post-commencement Act of the Scottish Parliament. In this case, section 30 also needs to apply to the words in order for them to be declared incompatible.
words in subordinate legislation made by virtue of a power inserted, on or after the day on which section 25 came into force, into a pre-commencement Act of the Scottish Parliament. Again, section 30 also needs to apply to the words in order for them to be declared incompatible.
109.Section 26(3) sets out equivalent additional limitations on the power to declare words in subordinate legislation incompatible as are set out in section 25(3) in relation to the power to strike down incompatible words in subordinate legislation.