Age of Criminal Responsibility Advisory Group update on implementation – COVID-19: May 2020

Message from the Minister for Children and Young People: 

I hope you are keeping safe and well during these unprecedented times. Covid-19 is the biggest challenge we have faced in our lifetimes and the Scottish Government is focusing all of its efforts in reducing the spread of this virus in order to protect the public and save lives. 

You will no doubt have seen the Scottish Government’s paper “Co-Vid 19: A Framework for Decision-Making” published on 23 April. 

Scotland’s response needs to reflect the core values of our National Performance Framework: kindness; dignity; compassion; respect for the rule of law; openness and transparency. It should also align with our overarching commitment to human rights, equality and social justice. In confronting the threat posed by COVID-19, we are determined that no member of Scottish society will be forgotten or left behind. 

In seeking to honour those principles, I wanted to contact you all to re-affirm the Government’s commitment to our vital work together on the Advisory Group and on the ACR reforms. My officials have set out an update below on the implementation of the 2019 Act and on some of the wider work to protect children and their rights. 

With uncertainty over how long the public health emergency and its impacts will last, and the need for colleagues and partner agencies to be actively redeployed to operational work on coronavirus, I have agreed that full implementation of the Act needs to be delayed. In the short term we will continue with what is possible, with the ambition of using the time well to prepare the best possible supporting material, and the intention of implementing the Act in full by Autumn 2021. 

My officials will continue to work with partners to develop the statutory guidance, processes and procedures, and secondary legislation required to commence the Act. 

We acknowledge that the current situation has forced partners to reprioritise at pace, and to a huge scale. But we need to find a sensible way to meet our obligations to Parliament and, most importantly, to Scotland’s children. 

I am grateful for your continued commitment to work with the Scottish Government as implementation proceeds (albeit to a reordered timescale), and look forward to when we are next able to meet face-to-face as a Group. 

Many thanks and please stay safe, 

Maree Todd MSP 
Minister for Children and Young People 

Whilst the Advisory Group is unable to convene in person, our aim as a Secretariat is to provide regular written updates to all members of the Group. In addition, we remain available to all members by email or phone for any advice/clarity outwith these updates. 

Please let us know whether you have any questions, or updates from your organisations that you would like to share with the Group. 

Implementation of the Act 

Part 2: Disclosure of convictions and other information of time when person under 12. 

Independent Reviewer 

The Scottish Ministers have appointed Ms Caroline Conway to the role of the Independent Review. Ms Conway will carry out the review functions under the ACR Act. 

Alongside the newly created role in Scotland, Ms Conway will continue her work in Northern Ireland where she was appointed as independent reviewer by the Department of Justice in April last year. 

It has not yet been possible to hold key introductory meetings as part of Ms Conway’s induction, because of the public health situation. While face-to-face meetings will not be possible at this time, we hope to arrange telephone conversations and virtual meetings where we are able to and will plan face-to-face meetings and engagement exercises, including with the Disclosure Delivery Group, when the situation permits. 

Procedure and guidance 

This is in progress, with input provided from a number of stakeholders. 

Commencement 

Due the public health situation, the disclosure provisions in the ACR Act cannot be commenced in June, as had originally been planned. Disclosure Scotland colleagues are working to ensure that we are ready to commence as quickly and as safely as possible, and will provide further updates as this progresses. 

Part 4 : Police investigatory and other powers 

This Part of the Act provides for police investigatory and other powers. Provisions allow for regulation- and guidance-making powers, the role of the Chirp, and how powers are to be used. We are working closely with colleagues in Police Scotland, SCRA, the Scottish Civil Justice Council and Social Work Scotland to develop processes and procedures for use of investigative powers. Police Scotland colleagues have developed draft guidance for use of place of safety powers, which will be considered by the Programme Board in the near future, as part of the preparation for wider consultation. 

Section 104 Order 

Section 104 of the Scotland Act 1998 enables the UK Government to legislate for any provision made by, or under, an Act of the Scottish Parliament. The need for the section 104 Order focusses on ensuring the effective and proper cross-border operation of the provisions in the 2019 Act insofar as they relate to the:- 

• powers of the independent reviewer
• extra-territorial jurisdiction for offence under section 75 (obstructing/interfering with a police investigation) and 
• the enforcement of the orders referred to in section 75(2)

Ministers across all administrations are content for the Order to be made. We have established good working relationships with policy officials across the devolved administrations and are working through issues as they arise. We are working to a timetable provided by the Scotland Office, which ultimately rests on availability of chamber time for debate in the UK Houses of Parliament and is likely to be impacted by Covid-19. However, we will work to secure the Order as quickly as possible. 

Court rules 

New court rules are likely to be required as a result of the provisions in the 2019 Act relating to the right of an individual and the police to appeal the independent reviewer’s decision to a sheriff and to the new order making powers contained in Part 4 of the Act i.e.

• an order authorising the search of a child under the age of 12 (section 36)
• a child interview order (section 44)
• an order authorising the taking of relevant physical data or relevant samples from a child (section 63)

A policy paper requesting new court rules was submitted to the Scottish Civil Justice Council (SCJC) Secretariat on 23 October 2019 with the Intention that it be considered by the Family Law Committee at its meeting on 11 November 2019. However, the Secretariat decided that it was more appropriate for the paper to be tabled for a full meeting of the Scottish Civil Justice Council rather than the Family Law Committee due to the question over where any new rules will sit. Whilst it was intended that the paper be considered by SCJC on 17 February 2020, the Secretariat felt that since clarification was required on a number of issues, it would be more realistic if SCJC approval to proceed with the drafting of new rules was obtained by way of Correspondence. We have provided the clarification required and whilst we have no official mechanism for expediting the process, we continue to engage unofficially with the SCJC Secretariat, to ensure that the Correspondence process is progressed as quickly as possible. Since the Act contains a number of new applications to the court, the drafting of new rules (by SCJC officials), checking (by SG policy and SGLD colleagues) and revision could need consideration at several meetings of the SCJC, before the rules are made by way of an Act of Sederunt. However, we will work to secure this as quickly as possible. 

Other areas of interest to the Advisory Group: 

The Covid-19 paper “Coronavirus (COVID-19): framework for decision making is available. 

Independent Care Review 

The Scottish Government absolutely remains fully committed to deliver on its pledge to care experienced people in Scotland by accepting and responding to the care review conclusions and to put into place quickly the infrastructure to develop and deliver an Action Plan to implement the outcomes reached and ‘#KeepThePromise’. The statement from the Care Review on 31 March affirms this.

Engagement with stakeholders 

Due to the current pandemic we have been unable to engage as fully as expected with stakeholders. We are keeping close contact with colleagues around different approaches to engagement and thinking about how we can best link in with stakeholders as the Covid-19 situation continues. A sufficient plan will be put in place for when restrictions start to lift as well as a timeline to ensure we are completing the activity that is expected. 

We have made connections with Who Cares? Scotland and have shared initial thoughts about engagement activity. Going forward, we will have monthly catch-ups with WC?S to ensure we are remain in close contact and make effective links for future engagement opportunities. 

Secretariat to the Advisory Group 
04 May 2020