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

26 Incompatibility declarators

(1) Subsection (2) applies in any proceedings in which a court determines whether any of the following give rise to an incompatibility with the UNCRC requirements—

(a) words—

(i) that are in a post-commencement Act of the Scottish Parliament, and

(ii) to which section 29 applies,

(b) words—

(i) that are in a pre-commencement Act of the Scottish Parliament, having been inserted on or after the day section 25 comes into force, and

(ii) to which section 29 applies,

(c) words—

(i) that are in subordinate legislation made by virtue of a post-commencement Act of the Scottish Parliament, and

(ii) to which section 30 applies,

(d) words—

(i) that are in subordinate legislation made by virtue of a provision that was inserted, on or after the day section 25 comes into force, into a pre-commencement Act of the Scottish Parliament, and

(ii) to which section 30 applies.

(2) If the court is satisfied that the words give rise to an incompatibility with the UNCRC requirements, it may make a declarator stating that incompatibility (an “incompatibility declarator”).

(3) Where the incompatible words are in subordinate legislation, the court—

(a) may make an incompatibility declarator in relation to the subordinate legislation only if the court is satisfied that (disregarding any possibility of revocation) the enactment by virtue of which the subordinate legislation is made prevents removal of the incompatibility,

(b) may not make an incompatibility declarator in relation to the subordinate legislation if the court is satisfied that (disregarding any possibility of revocation) words in another enactment to which neither section 29 nor 30 apply prevent removal of the incompatibility.

(4) An incompatibility declarator—

(a) does not affect the validity, continuing operation or enforcement of the words in respect of which it is made, and

(b) is not binding on the parties to the proceedings in which it is made.

(5) In this section—

• a “post-commencement Act of the Scottish Parliament” means an Act of the Scottish Parliament the Bill for which received Royal Assent on or after the day on which this section comes into force,

• “pre-commencement Act of the Scottish Parliament” has the meaning given in section 25(10)(a).