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Age of Criminal Responsibility (Scotland) Act 2019 Statutory Instruments 2021/420 and 2021/421

Letter from the Minister for Children and Young People, 19 January 2022

Dear Convener

Age of Criminal Responsibility (Scotland) Act 2019 (Supplementary Provision) (Jurisdiction) Regulations 2021 (SSI 2021/420) and Age of Criminal Responsibility (Scotland) Act 2019 (Places of Safety) Regulations 2021 (SSI 2021/421)

As you will recall from my letter dated 17 November, the Age of Criminal Responsibility (Scotland) Act 2019 (“the Act”) came fully into force as planned on 17 December. This means the age of criminal responsibility in Scotland is now 12 years of age, and young children are removed from the harmful effects of early criminalisation.

I would like to thank the Equalities, Human Rights and Civil Justice Committee’s careful consideration of the above-noted Scottish Statutory Instruments on 14 December.  These instruments have supported delivering commencement of the Act, as follows:

Age of Criminal Responsibility (Scotland) Act 2019 (Supplementary Provision) (Jurisdiction) Regulations 2021 (SSI 2021/420)

The Act contains a bespoke package of police investigatory and other powers, some of which can only be exercised when a court order has been obtained. This SSI makes provision for jurisdiction to entertain applications to court for such an order.

Age of Criminal Responsibility (Scotland) Act 2019 (Places of Safety) Regulations 2021 (SSI 2021/421)

Section 28 of the Act provides police with the power to take a child to a place of safety. It is capable of use only in the most serious situations. This SSI prescribes the particular pieces of information police are to record when they make use of that power.

I am also grateful to the Delegated Powers and Law Reform Committee’s consideration of these two instruments on 30 November, during which I note that no points were raised.

SSIs and points for consideration

As part of your Committee’s consideration of these two SSIs, Ms Duncan-Glancy raised two questions for Government’s consideration, which I am pleased to be able to address below.

Child Rights and Wellbeing Impact Assessment (CRWIA)

Ms Duncan-Glancy asked about the production of a CRWIA for the SSIs.

In relation to SSI 2021/420, on 3 December the Scottish Government published a Stage 1 CRWIA setting out the reasons why a full impact assessment was not required for this instrument. To summarise the conclusions in that document, and as stated above, this SSI simply makes provision for jurisdiction to entertain applications to court for investigatory orders under the Act. It is essentially an administrative decision-making mechanism, and we concluded that there was minimal impact on children.

In coming to that conclusion, we were careful to differentiate between the impact of SSI 2021/420 and the impact on children of the courts being able to consider applications for investigatory orders. The latter is a consequence of the provisions in the Act which enable such orders to be sought, rather than SSI 2021/420. The impact of this on children was considered in detail for the CRWIA for the Age of Criminal Responsibility (Scotland) Bill (“the Bill”), which was published on the Scottish Government’s website  on 14 March 2018. 

In relation to SSI 2021/421, on 3 December the Scottish Government published a CRWIA  which considered in detail the impact of this instrument on children. In that CRWIA, we explained:

• how the section 28 power in the Act will only be used in relation to children under the age of 12, but that there is a high bar for use of the test and that Government does not expect it to be frequently used
• how the SSI will support robust record keeping and an audit trail in relation to use of the section 28 power, in turning contributing to reports to Parliament on the use of the power as required under section 29 of the Act, and
• that the SSI will support children’s wellbeing and have a positive impact on children’s rights.

The age of criminal responsibility in Scotland

Ms Duncan-Glancy also questioned why the age of criminal responsibility in Scotland  had not yet been raised to 14 years of age. 

When the Bill was debated in Parliament, this point was considered in detail. Amendments were laid at Stages 2 and 3 of the Bill process, proposing a higher age. These amendments were rejected at Committee and by the Parliament. The Bill was approved at Stage 3 with unanimous support across the Chamber. The increase in the age of criminal responsibility from 8 to 12 means that Scotland has the highest such age in the UK, reflecting the Scottish Government’s commitment to protecting and promoting the rights and interests of children and young people. 

Part 6 of the Act contains provisions on reviewing the legislation in a period of three years beginning with the day the age of criminal responsibility increased to 12. That period began on 17 December. Section 78 of the Act requires the Scottish Ministers to review the operation of the Act generally, and also with a view to considering the age of criminal responsibility. There is an also an obligation on Ministers to lay a report to Parliament reflecting the outcome of the review. 

I would like to assure the Committee that the Scottish Government is committed to a robust review of the Act in line with the obligations in Part 6. The review can and will take into account views on what the age of criminal responsibility in Scotland should be, and the report to Parliament will reflect discussions which will take place throughout the review period on this key point. 

Demonstrating our commitment to fulfilling the obligation to review the Act, an Advisory Group was established in summer 2019 to assist Scottish Ministers in undertaking the review. The Advisory Group comprises a range of stakeholders, including Action for Children, the Centre for Youth and Criminal Justice, Police Scotland, Victim Support Scotland, and Social Work Scotland.  

Information about the work of the Advisory Group is regularly published on its website , but I would be happy to provide you with updates about the Group’s work as it progresses, if this would be at all helpful to the Committee. 

I hope that Ms Duncan-Glancy, you and the other Committee members find the information set out above helpful.

Clare Haughey