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SSI 2021/452 - The Rt Hon Lord Carloway Lord President

Letter from the Rt Hon Lord Carloway Lord President to the Convener, 20 January 2022

Dear Stuart,

I thank you for your letter of 23 December 2021 in relation to the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules 1999 and Sheriff Appeal Court Rules Amendment) (Age of Criminal Responsibility (Scotland) Act 2019) 2021, (SSI. 2021/452).

The Committee seeks clarification of the circumstances which caused the instrument to be prepared and laid urgently by the Court. The Committee is interested in whether there was any correspondence between my office and the Scottish Government which provided my office with advance notification that the relevant provisions of the 2019 Act were coming into force on 17 December. I am happy to assist with these enquiries.

The date on which the Scottish Civil Justice Council was notified by the Scottish Government of its intention to commence Part 4 of the 2019 Act was 4 November 2021. The SCJC notified my office of this development by email on 5 November 2021. Prior to this email there had been no indication that Scottish Ministers were planning to commence Part 4 of the 2019 ln December 2021. The notification took place despite the fact that an ACRA Implementation Group had been convened in JuIy 2021 and was meeting on a regular basis to resolve the outstanding obstacles to implementation. This group comprised the key delivery bodies, namely representatives from the Scottish Government Police Scotland, the Scottish Legal Aid Board, the SCJC and Scottish Courts and Tribunals Service officials. Several operational matters were under active discussion by that group. My office was not part of the group, but officials in my office were kept updated by policy officials in the SCJC.

In light of this development and the very tight timescales involved, I gave my approval for an extraordinary meeting of the SCJC to be convened on Monday 29 November, to allow the Council to discuss commencement of the legislation and, in particular, the terms of the draft Act of Sederunt. I hope that explains the timeline and provides some context to the events from my perspective.

I recognise that the primary legislation was passed in 2019. In such circumstances I acknowledge that Ministers may well have been anxious to see that it was implemented with reasonable despatch. I regret that a more robust timetable was not devised to ensure that this occurred. I am not sure why that was the case and, in particular, why an implementation group was only established in mid 2021. Nevertheless, it is primarily for the Government to ensure that, prior to commencement legislation is capable of being operated in a practical manner. Where an implementation group is in place with a view to securing that practicality, it is most unfortunate if the carpet is removed from under its feet in the midst of its deliberations. A more measured method of accelerating the process might have been devised.

The Rt Hon Lord Carloway Lord President