Act of Adjournal (Criminal Procedure Rules 1996 Amendment) (Challenges to Validity of EU Instruments (EU Exit)) 2019

Made: 21st October 2019

Laid before the Scottish Parliament: 22nd October 2019

Coming into force in accordance with paragraph 1(2)

The High Court of Justiciary makes this Act of Adjournal under the powers conferred by section 305 of the Criminal Procedure (Scotland) Act 1995 and all other powers enabling it to do so.

Citation and commencement, etc.

1

• (1) This Act of Adjournal may be cited as the Act of Adjournal (Criminal Procedure Rules 1996 Amendment) (Challenges to Validity of EU Instruments (EU Exit)) 2019.

• (2) It comes into force on exit day.

• (3) A certified copy is to be inserted in the Books of Adjournal.

Amendment of the Criminal Procedure Rules 1996

2

• (1) The Criminal Procedure Rules 1996[^f00002] are amended in accordance with this paragraph.

• (2) After Chapter 69 (Labour Market Enforcement Orders)[^f00003] insert—

(70.1) (1) In this Chapter— - “the 2019 Regulations” means the Challenges to Validity of EU Instruments (EU Exit) Regulations 2019[^f00004]; - “EU instrument” has the meaning provided in schedule 1 of the Interpretation Act 1978[^f00005]; - “other proceedings” means criminal proceedings, including bills of advocation and bills of suspension, which are not solemn proceedings or summary proceedings to which regulation 3 of the 2019 Regulations applies; - “solemn proceedings” means any such proceedings to which regulation 3 of the 2019 Regulations applies; - “summary proceedings” means any such proceedings to which regulation 3 of the 2019 Regulations applies; - “TFEU” means the Treaty on the Functioning of the European Union including the Protocols thereto[^f00006]; - “the relevant UK authorities” has the meaning provided by regulation 2 of the 2019 Regulations. (2) This Chapter applies to challenges to the validity of an EU instrument, as provided for by regulation 3 of the 2019 Regulations. (70.2) (1) This rule applies to solemn and summary proceedings. (2) Where a party to solemn or summary proceedings seeks a declaration from the court that an EU instrument was invalid on any of the grounds set out in the second paragraph of Article 263 TFEU as it has effect immediately before exit day, or the court is considering whether to make such a declaration at its own instance in the proceedings— (a) notice in Form 70.2-A is to be given to the relevant UK authorities no later than 21 days, or such other period as the court may direct, before the date on which the declaration is to be made— (i) by the party seeking the declaration; or (ii) by the clerk of court, as the case may be; and (b) where notice is given by the party seeking the declaration, the party must lodge a certificate of notification with the court. (70.3) Where any of the relevant UK authorities wish to be joined as a party to solemn or summary proceedings they must give notice to that effect in Form 70.3-A to the clerk of court and must serve a copy of the notice on all other parties in the proceedings. (70.4) (1) This rule applies to other proceedings. (2) Where a party to other proceedings seeks a declaration from the court that an EU instrument was invalid on any of the grounds set out in the second paragraph of Article 263 TFEU as it has effect immediately before exit day, or the court is considering whether to make such a declaration at its own instance in the proceedings— (a) the issue must be raised as a point of law in the pleadings; (b) notice in Form 70.2-A is to be given to the relevant UK authorities no later than 21 days, or such other period as the court may direct, before the date on which the declaration is to be made— (i) by the party seeking the declaration; or (ii) by the clerk of court, as the case may be; and (c) where notice is given by the party seeking the declaration, the party must lodge a certificate of notification with the court. (70.5) Where any of the relevant UK authorities wish to be joined as a party to other proceedings they must give notice to that effect in Form 70.3-A to the clerk of court and must serve a copy of the notice on all other parties in the proceedings.

• (3) In the Appendix (forms), after Form 69.3 (form of note of appeal against the making of, or refusal to make, an order under section 23 of the Immigration Act 2016) insert Forms 70.2-A and 70.3-A set out in the schedule of this Act of Adjournal.

SCHEDULE

Signed

CJM SUTHERLAND — Lord Justice General — 2019-10-21

Explanatory note

(This note is not part of the Act of Adjournal)

Footnotes

[^f00001]: 1995 c.46. Section 305 was amended by section 111(1) of the Criminal Justice (Scotland) Act 2016 (asp 1) and S.S.I. 2015/338, and was extended by section 386(3)(a) of the Proceeds of Crime Act 2002 (c.29), section 36A(4) of the Serious Crime Act 2007 (c.27), and section 32(5) of the Psychoactive Substances Act 2016 (c.2).

[^f00002]: The Criminal Procedure Rules 1996 are in schedule 2 of the Act of Adjournal (Criminal Procedure Rules) 1996 ( S.I. 1996/513), last amended by S.S.I. 2019/321.

[^f00003]: Chapter 69 was inserted by S.S.I. 2019/139.

[^f00004]: S.I. 2019/673.

[^f00005]: 1978 c.30. Schedule 1 of the Interpretation Act 1978 defines words and expressions, as amended by, and prospectively relevantly amended by, the European Union (Withdrawal) Act 2018 (c.16), schedule 8, paragraph 22.

[^f00006]: OJ C 202, 7.6.2016, p.1-388.

1

• (1) This Act of Adjournal may be cited as the Act of Adjournal (Criminal Procedure Rules 1996 Amendment) (Challenges to Validity of EU Instruments (EU Exit)) 2019.

• (2) It comes into force on exit day.

• (3) A certified copy is to be inserted in the Books of Adjournal.

2

• (1) The Criminal Procedure Rules 1996 are amended in accordance with this paragraph.

• (2) After Chapter 69 (Labour Market Enforcement Orders) insert—

(70) (1) In this Chapter— - “the 2019 Regulations” means the Challenges to Validity of EU Instruments (EU Exit) Regulations 2019 ; - “EU instrument” has the meaning provided in schedule 1 of the Interpretation Act 1978 ; - “other proceedings” means criminal proceedings, including bills of advocation and bills of suspension, which are not solemn proceedings or summary proceedings to which regulation 3 of the 2019 Regulations applies; - “solemn proceedings” means any such proceedings to which regulation 3 of the 2019 Regulations applies; - “summary proceedings” means any such proceedings to which regulation 3 of the 2019 Regulations applies; - “TFEU” means the Treaty on the Functioning of the European Union including the Protocols thereto ; - “the relevant UK authorities” has the meaning provided by regulation 2 of the 2019 Regulations. (2) This Chapter applies to challenges to the validity of an EU instrument, as provided for by regulation 3 of the 2019 Regulations. (70) (1) This rule applies to solemn and summary proceedings. (2) Where a party to solemn or summary proceedings seeks a declaration from the court that an EU instrument was invalid on any of the grounds set out in the second paragraph of Article 263 TFEU as it has effect immediately before IP completion day, or the court is considering whether to make such a declaration at its own instance in the proceedings— (a) notice in Form 70.2-A is to be given to the relevant UK authorities no later than 21 days, or such other period as the court may direct, before the date on which the declaration is to be made— (i) by the party seeking the declaration; or (ii) by the clerk of court, as the case may be; and (b) where notice is given by the party seeking the declaration, the party must lodge a certificate of notification with the court. (70) Where any of the relevant UK authorities wish to be joined as a party to solemn or summary proceedings they must give notice to that effect in Form 70.3-A to the clerk of court and must serve a copy of the notice on all other parties in the proceedings. (70) (1) This rule applies to other proceedings. (2) Where a party to other proceedings seeks a declaration from the court that an EU instrument was invalid on any of the grounds set out in the second paragraph of Article 263 TFEU as it has effect immediately before IP completion day, or the court is considering whether to make such a declaration at its own instance in the proceedings— (a) the issue must be raised as a point of law in the pleadings; (b) notice in Form 70.2-A is to be given to the relevant UK authorities no later than 21 days, or such other period as the court may direct, before the date on which the declaration is to be made— (i) by the party seeking the declaration; or (ii) by the clerk of court, as the case may be; and (c) where notice is given by the party seeking the declaration, the party must lodge a certificate of notification with the court. (70) Where any of the relevant UK authorities wish to be joined as a party to other proceedings they must give notice to that effect in Form 70.3-A to the clerk of court and must serve a copy of the notice on all other parties in the proceedings.

• (3) In the Appendix (forms), after Form 69.3 (form of note of appeal against the making of, or refusal to make, an order under section 23 of the Immigration Act 2016) insert Forms 70.2-A and 70.3-A set out in the schedule of this Act of Adjournal.

Editorial notes

[^c23910771]: 1995 c.46. Section 305 was amended by section 111(1) of the Criminal Justice (Scotland) Act 2016 (asp 1) and S.S.I. 2015/338, and was extended by section 386(3)(a) of the Proceeds of Crime Act 2002 (c.29), section 36A(4) of the Serious Crime Act 2007 (c.27), and section 32(5) of the Psychoactive Substances Act 2016 (c.2).

[^c23910781]: The Criminal Procedure Rules 1996 are in schedule 2 of the Act of Adjournal (Criminal Procedure Rules) 1996 (S.I. 1996/513), last amended by S.S.I. 2019/321.

[^c23910791]: Chapter 69 was inserted by S.S.I. 2019/139.

[^c23910801]: S.I. 2019/673.

[^c23910811]: 1978 c.30. Schedule 1 of the Interpretation Act 1978 defines words and expressions, as amended by, and prospectively relevantly amended by, the European Union (Withdrawal) Act 2018 (c.16), schedule 8, paragraph 22.

[^c23910821]: OJ C 202, 7.6.2016, p.1-388.

[^key-003c89eef1110d2642d37a9f001851ec]: Para. 2 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see para. 1(2)

[^key-e9fd7a2081d69a0d0b2a0a7481964ed4]: Para. 1 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see para. 1(2)

[^key-8d97f84f02faa5c7df630c48945d41b1]: Words in para. 2(2) substituted (31.12.2020 immediately before IP completion day) by Act of Adjournal (Challenges to Validity of EU Instruments (EU Exit)) (Amendment) 2020 (S.S.I. 2020/470), paras. 1(2), 2(2)

[^M_I_8a2f99d1-4175-465a-9579-da33dde14da8]: Sch. in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see para. 1(2)