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Age of Criminal Responsibility (Scotland) Act 2019 (Consequential Provisions and Modifications) Order 2021

Volume 816: debated on Tuesday 23 November 2021

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Age of Criminal Responsibility (Scotland) Act 2019 (Consequential Provisions and Modifications) Order 2021.

My Lords, this draft order was laid before the House on 18 October 2021. It will support the Scottish Government’s decision to raise the age of criminal responsibility in Scotland from eight to 12 by making cross-border provisions necessary for the implementation of this change.

This order, known as a Scotland Act order, is made in consequence of the Age of Criminal Responsibility (Scotland) Act 2019, which I shall now refer to as the 2019 Act. Scotland Act orders are a type of secondary legislation made under the Scotland Act 1998, which has formed the foundation of the devolution settlement with Scotland for over 20 years.

The 2019 Act raised the age of criminal responsibility in Scotland from eight to 12. The Act also established the role of the independent reviewer. This is a position that oversees the disclosure of convictions, and other relevant information, related to when a person was under the age of 12. The 2019 Act provides specific powers for the police to investigate instances of serious harmful behaviour by children under the age of 12.

To support this change, amendments are required to UK legislation to ensure that the 2019 Act can be implemented fully. The order is designed to protect and support children. With this in mind, I first want to explain the disclosure provisions set out in Part 2 of the legislation.

While the 2019 Act made it possible for Scottish Ministers to request certain information from chief police officers in Scotland relating to the behaviour of children, the Act also created the position of the independent reviewer. In their post, the independent reviewer will be responsible for determining whether this information ought to be released if it relates to a time when the person in question was under the age of 12.

This Scotland Act Order will ensure that the powers of the independent reviewer apply across the UK, so that information provided by chief police officers from other forces will be reviewed by the independent reviewer before it is released to Scottish Ministers.

The order also extends provisions of the 2019 Act, which currently apply to Police Scotland, to constables of non-territorial forces operating in Scotland. This will ensure that consistency in policing is achieved across Scotland, with equality of treatment for any child in that jurisdiction regardless of the situation. That said, it is not expected that these non-territorial forces will use these provisions often, if at all.

Police across the UK are also supported by this order. Section 75 of the 2019 Act has made it an offence in Scotland for a person to obstruct investigations into behaviour of a child under the age of 12 who is believed to have caused serious harm to another person. The order will extend this offence to include obstructions that occur elsewhere in the UK. Similarly, the order facilitates the cross-border enforcement of court orders made under the 2019 Act for the collection of information from a child under the age of 12 in other parts of the UK. This may be necessary if a child has returned home to another part of the UK following a serious incident in Scotland.

Let me offer a real-world example of the changes that the order seeks to make. Let us consider what might happen if a child who lives in England is involved in a serious incident while on holiday in Scotland. The order provides that a Scottish court order authorising collection of information from that child can be enforced in England. This will enable the incident to be effectively investigated so that the right support can be put in place for the child and any person involved in the incident. Through the changes made by this order, children in Scotland will be better supported.

This order will also enable appropriate bodies such as Police Scotland and local authorities to engage with their counterparts across the UK to ensure that harmful behaviour is addressed proportionately and accurately. Court orders sought and granted in Scotland will be enforceable by police forces across the UK in relation to a child whose behaviour causes harm and who then leaves Scotland before Scottish police were able to enforce the order.

It is important to point out here that the number of children affected is very small. In Scotland, data provided by the Scottish Children’s Reporter Administration shows that, in 2016-17—those are the most recent figures—only 16 serious cases involving children under 12 resulted in an interview. Police Scotland also advised that only 10 children under 12 were searched during that same period.

In summary, this instrument will ensure that the Age of Criminal Responsibility (Scotland) Act 2019 can be fully implemented, with necessary cross-border provisions put in place. We believe that this order is a sensible and pragmatic step to assist the Scottish Government. I commend it to the Committee and beg to move.

My Lords, I thank the Minister for explaining the circumstances; indeed, I thank him for the Explanatory Notes, which make this clear. However, they raise some interesting questions.

First, it is perhaps worth recording that, prior to the 2019 Act, the situation in Scotland was anomalous in quite remarkable ways. The age of criminal responsibility was eight, yet we had a well-developed set of children’s panels and children’s hearings which were designed to ensure that children were not treated as criminals and not subject to the criminal process. The surprise is how long it took to address the age of criminal responsibility.

Secondly, the rest of the UK is now out of step with Scotland: the age of criminal responsibility is 10 in the rest of the UK and 12 in Scotland. This raises the question not of the enforceability of this order but of whether the relevant authorities will understand, engage with and be fully conversant with the differences. I think we all recognise that, sadly, children, including very young children, are capable of quite wicked acts, acts that are by definition and in their characteristic criminal. However, if they are under the age of criminal responsibility, they will not be subjected to the criminal process.

So, when there is an issue of questioning, following up on or investigating children, will the authorities in other parts of the United Kingdom approach it in the same way as the authorities in Scotland, given the different background? Will this lead to children who have crossed the border being treated differently and adversely through a lack of appreciation and understanding of the differences between the two regimes? Although we do not expect many cases like this, that issue could raise an anomaly.

On a broader issue that is perhaps a matter for the United Kingdom Government, at 12, the age of criminal responsibility is still considered by many authorities to be too low. I think the Council of Europe suggested that it should be at least 14, while the United Nations thinks that it should be 16. Is any consideration being given to the rest of the United Kingdom raising the age of criminal responsibility? Also, because the final stages of the Act will not come into force until next month, are any issues likely to arise from the transitional arrangements—that is, will children under the age of 12 who committed a crime or were engaged in the system before the Act came into force still be subjected to the old regimes both north and south of the border? How might that play out? Of course we understand the need for the order—that is not in question—but I hope the Minister recognises that some issues could arise out of the differences in both the age of criminal responsibility and the procedures applied in Scotland compared with England.

As a final footnote, the children’s panel and children’s hearings have generally been recognised as a highly progressive mechanism for dealing with young offenders below the age of criminal responsibility, yet they have not been replicated. With the wonders of our United Kingdom, I wonder why we do not pursue best practice. This is one area where Scotland, having lagged behind, certainly on the age of criminal responsibility, has now overtaken England and has a much more constructive, progressive system for handling young people who get into trouble. Having read the guidelines for the child interview rights practitioners, which are quite thorough, I wonder whether there will be people in other parts of the United Kingdom who have conformed to the same sort of guidelines that have been established for the Scottish process.

I hope the Minister understands what we are talking about. I accept that it is very few cases, but despite the law trying to ensure that there is a common practice across the United Kingdom, the differences might lead to a situation where the law and the practice do not coincide.

I am grateful to the Minister for introducing this instrument so clearly. We support it in the context of increasing the age of criminal responsibility from eight to 12. It is appropriate that measures be taken to give effect to that, particularly in relation to the cross-border element. I am interested in how it works in practice. I might not have understood it, but I would be grateful if the Minister would help me on this.

As I understand it, in Part 2 of the order we are dealing with a situation where, typically, a chief constable of an area in England has information about what somebody did between the ages of eight and 12. We are talking about something that either is or would have been a criminal offence in England when the person committed it. If the position is that the chief constable of the English area has that information, is the effect of this provision that, before the chief constable provides that information to Scottish Ministers, the independent reviewer must consider whether the chief constable of the English area should make that information available to the Scottish Ministers?

If that is the position, before the chief constable refers the matter to the independent reviewer, does he or she have a discretion as to whether they submit that information to the independent reviewer? If the chief constable has such a discretion, could the Minister—I gave no warning of this, so I would quite understand if he needs to write to me—give some indication of the basis on which the chief constable should determine whether to submit that information to the independent reviewer? Separately, could he indicate what approach the independent reviewer will take as to whether such information should be made available from the chief constable of the English area to the Scottish Ministers?

What I am trying to get at is some assistance for the English police forces. Understandably, the order gives no indication of the right approach in relation to this. Given what the Scottish Government are asking the UK Government to do, do the Scottish Government want the norm to be that the English police forces do not disclose the information about what the person did between eight and 12, save in exceptional circumstances? If that is the policy intention, what other sorts of things would be exceptional circumstances?

I would have thought that the policy might be that, if there was a conviction or something similar to it for somebody between eight and 12, it would be extremely likely to be only for something incredibly serious, because it is very unlikely that anybody would be prosecuted in England—and never between eight and 10, because the age of responsibility is 10 in Scotland. The numbers of prosecutions of people between 10 and 12 are minute, and will only occur in very serious cases.

Is the practicality, therefore, that it will always be so serious that you would always expect the chief constable to report to the Scottish Ministers on any such prosecution? Separately from all those questions, but connected with the same approach, would matters other than prosecutions be covered—for example, investigations, cautions, referral to local authority care proceedings, or something like that?

I am sorry to have given no warning about these questions. As I say, we support the order. We are just very keen to see how it works in practice.

I start by thanking the noble Lord, Lord Bruce of Bennachie, and the noble and learned Lord, Lord Falconer, for their general support for this order. As I alluded to earlier, the instrument before us today will support the Scottish Government in the implementation of the 2019 Act and ensure that effective and proper cross-border co-operation is undertaken. I re-emphasise that the order will ensure that disclosure of information relating to when a person under the age of 12 is properly managed—I shall come back to this point—that police forces operating in Scotland are all working under the same regulations, and that it will provide support for Police Scotland in its work across the UK.

The noble Lord, Lord Bruce, asked a number of questions, which I hope I can answer. The first is very simple: why has it taken so long, going back to 2010, for us to get to this point today? He might not expect any other answer than the one that I am about to give: that this is certainly a matter for the Scottish Government. In some defence of the Scottish Government, I would say that it is important to recognise the complexity and sheer volume of work required to ensure that we get to this point and that the work of this important side is successful. It is fair to say that the Scottish Government have taken a phased approach to implementation, prioritising changes that have the most material positive effects for children and young people. But it is for the Scottish Government to say why it has taken so long.

The noble Lord, Lord Bruce, asked about the age of criminal responsibility and how it compares with arrangements in other parts of the UK. He will know that the age of criminal responsibility in England and Wales was set at age 10 by the Children and Young Persons Act 1963 and has been maintained by subsequent Governments. Most children aged 10 to 14 are diverted from the formal criminal justice system or receive an out-of-court disposal. Younger children should not be prosecuted for offences unnecessarily when a better alternative may be available. A child’s needs, maturity and chronological age are always considered in determining the most appropriate response to offending. As the noble Lord will know—he is right to ask the question—this is a complex issue, and the needs of each child need to be taken into account.

The noble Lord also asked about cross-border co-operation work, and I think that the noble and learned Lord also alluded to this. Co-operation could be in the form of enforcement of a Scottish court order by an English or Welsh police force or the Police Service of Northern Ireland on behalf of Police Scotland. Information-sharing between Scottish, Welsh and English local authorities will also allow for the child’s resident authority to take appropriate actions to address serious harmful behaviour that took place in Scotland. The Scottish Government have agreed to pay individual local authorities in England, Wales and Northern Ireland any additional costs each time the independent reviewer makes a request for information.

In respect of Northern Ireland, a number of statutory criminal justice agencies, including the Police Service of Northern Ireland, AccessNI and the Youth Justice Agency, have agreed to share information with the independent reviewer, on request, where a child is known to the authorities in Northern Ireland.

The noble Lord, Lord Bruce, also asked whether this order will create problems for complicated cases involving young people between Scotland and England. Again, it plays well into some of the questions raised by the noble and learned Lord. The answer is no. The order is designed to protect and support children in the very rare instances where cross-border co-operation is needed. It simply gives the relevant bodies the ability to effectively collaborate on investigating an incident of harmful behaviour so that the right support can be put in place for a child. Again, I make the point that this is child specific.

The noble Lord, Lord Bruce, raised the issue of transition. There are no transitional arrangements for police powers. There is nothing retrospective about raising the age, so something effective beforehand that was an offence still will be, but, as there are so few cases, there may well be none in the police system at the point of commencement.

The noble and learned Lord, Lord Falconer, raised a number of questions and I may well need to read Hansard and produce a letter for him. I appreciate the fact that he acknowledged that he did not give me any advance notice, but that is okay. He asked an important question: how does the cross-border arrangement work in practice? Operational guidance is being developed by Social Work, Police Scotland and the Convention of Scottish Local Authorities. Ministerial guidance has already been issued in relation to certain police powers in the Act, but the answer is that it is work in progress. Noble Lords may wonder why that is the case, given that we are 10 years in, but that is the answer.

The noble and learned Lord also asked how Police Scotland and Scottish local authorities work with their counterparts in the rest of the UK. I think that I have answered part of that question in response to the noble Lord, Lord Bruce, but I add that the order will enable Scottish bodies to work with their counterparts across the UK to investigate harmful behaviour by a child under the age of 12 in Scotland. This could be through the enforcement of court orders or information sharing between local authorities to help to address the harmful behaviour in the child’s local residential area.

The noble and learned Lord also asked about the independent reviewer and how it works specifically. I hope that I can answer many of his questions in the following way. The independent reviewer can review information concerning the behaviour of persons while under 12 before the information can be disclosed on an enhanced disclosure or protecting vulnerable groups scheme record, as other relevant information. The reviewer has the power to gather additional information necessary to carry out the review and must invite representations from the applicant and take them into account when doing so.

This newly created role introduces a fairer and more proportionate approach to the disclosure of information that occurred while the individual was under the age of 12. The reviewer will take into account the interests of the young person and of community safety when deciding if an individual’s actions during their childhood should be disclosed, to ensure that young people’s life chances are not unnecessarily affected by harmful behaviour in childhood. However, I am aware that the noble and learned Lord asked some precise procedural questions, so I may not have given the full answer. I will need to read Hansard and get back to him.

The noble Lord, Lord Bruce, asked about children’s court hearings and why these have not been implemented. It can be misleading to make simple comparisons between countries, because youth justice and wider social security systems differ considerably, which I suspect he will know. It is the aim of English forces to check information with the independent reviewer before submitting to the Scottish Government. That relates to a question asked, I think, by the noble and learned Lord, Lord Falconer.

I hope that I have covered the majority of questions. There is quite a lot of technical information here and I feel that I probably need to write a full letter just to check that I have everything in order and to ensure that full answers are given. Otherwise, with that, I beg to move.

Motion agreed.