Part 2Duties on public authorities

Acts of public authorities to be compatible with the UNCRC requirements

I16Acts of public authorities to be compatible with the UNCRC requirements

1

It is unlawful (subject to subsection (4)) for a public authority to act, or fail to act, in connection with a relevant function in a way which is incompatible with the UNCRC requirements.

2

In subsection (1), a “relevant function” means a function that—

a

it is within the legislative competence of the Scottish Parliament to confer on the authority, and

b

is conferred by—

i

an Act of the Scottish Parliament,

ii

a Scottish statutory instrument originally made wholly under a relevant enabling power,

iii

a provision in a Scottish statutory instrument originally made partly under a relevant enabling power, provided that the provision itself was either—

A

originally made under the relevant enabling power, or

B

inserted into the instrument by an Act of the Scottish Parliament or subordinate legislation made under a relevant enabling power, or

iv

a rule of law not created by an enactment.

3

In subsection (2), “relevant enabling power” means a power to make subordinate legislation conferred by a provision in an enactment of a kind mentioned in that subsection, unless the provision was inserted by an enactment of a kind that is not mentioned in that subsection.

4

But subsection (1) does not make unlawful doing or failing to do something if the authority was required or entitled to act in that way by words that—

a

are not contained in an enactment of a kind mentioned in subsection (2)(b), or

b

are contained in such an enactment having been inserted into it by an enactment of a kind that is not mentioned in subsection (2)(b).

5

In this section, “public authority”—

a

includes, in particular—

i

the Scottish Ministers,

ii

a court or tribunal,

iii

any person certain of whose functions are functions of a public nature (but see subsection (8)),

b

does not include the Scottish Parliament or a person carrying out functions in connection with proceedings in the Scottish Parliament.

6

For the purposes of subsection (5)(a)(iii), “functions of a public nature” includes, in particular, functions carried out under a contract or other arrangement with a public authority.

7

Functions are not excluded from being functions of a public nature for the purposes of subsection (5)(a)(iii) solely because they are not publicly funded.

8

In relation to a particular act, a person is not a public authority by virtue only of subsection (5)(a)(iii) if the nature of the act is private.