Building a New Scotland: Justice in an independent Scotland

Our approach to justice

In February 2022 the Scottish Government published the Vision for Justice in Scotland,^[10] which was endorsed by our partners on the National Justice Board.^[11]

The vision has five aims that span criminal, civil, and administrative justice, with a focus on creating safer communities and shifting societal attitudes and circumstances which perpetuate crime and harm:

• Safe: we have a society in which people feel, and are, safer in their communities
• Prevention and early intervention: we work together to address the underlying causes of crime and support everyone to live full and healthy lives
• Person-centred and trauma-informed: we have effective, modern, person-centred and trauma- informed approaches to justice in which everyone can have trust, including as victims, those accused of crimes, and as individuals in civil disputes
• Rehabilitation: we support rehabilitation, use custody only where there is no alternative, and work to reduce reoffending and revictimisation
• Transform: we address the on-going impact of the COVID-19 pandemic and continue to renew and transform justice

The vision is an evolution of previous strategies and built on the positive progress that had been made in fostering safer communities, reducing crime and reoffending, modernising the justice sector, and supporting people in rehabilitation.^[12] Recognising that there are still challenges remaining,^[13] this Scottish Government’s vision of a just, safe, resilient Scotland continues to focus reform efforts on prevention and early intervention while addressing the needs of all users, and empowering our people and communities to exercise their rights and responsibilities to resolve disputes and other civil justice problems at the earliest opportunity.

The Scottish Government’s approach to justice seeks, where appropriate, to deal with many issues as public health issues rather than justice ones. Independence would enable Scotland to further embed this approach in areas that are currently reserved, including drug policy reform.

Published alongside the Vision for Justice in Scotland was a Year One Delivery Plan,^[14] with a subsequent Three Year Delivery Plan published in November 2023.^[15] The plans set out how we will meet the aims and were developed in collaboration with partners across the justice sector. The latter sets out an ambitious programme of reforms that are being taken forward to March 2026, and puts a fresh focus on early intervention to prevent and reduce crime to make communities safer.

Justice achievements

There has been substantial improvement in many areas across the justice system. Much work still requires to be done as shown in our ambitious delivery plans. However, there is much of which Scotland can be proud.

In relation to levels of crime:

• in 2022-23 police recorded crime^[16] was at one of the lowest levels seen since 1974, and is down 42% since 2006-07. Over the past ten years (since 2013-14), total recorded crime in Scotland has decreased by 13%^[17] - this continues a generally decreasing trend in recorded crime over the longer term, from a peak in 1991
• the Scottish Crime and Justice Survey 2021/22^[18] estimates that crime has fallen by 53% since 2008-09
• there were 52 homicide victims recorded by the police in Scotland in 2022-23,^[19] the lowest number since comparable records began in 1976 - for all the 52 homicide victims recorded in 2022-23, the associated case was solved
• we have seen reductions in the number of under 18 -year-olds prosecuted in court and sentenced to custody. Between 2008-09 and 2019-20 (the most recent statistics available that are unaffected by the impact of the COVID-19 pandemic on court business), there was an 85% reduction in the number of children and young people prosecuted in Scotland’s courts and a 93% reduction in 16-and 17-year-olds being sentenced to custody^[20]

The Scottish Government has:

• created a single police and fire service through the Police and Fire Reform (Scotland) Act 2012,^[21] one of the most significant pieces of public service reform to have ever taken place in Scotland
• introduced the world leading^[22] Domestic Abuse (Scotland) Act 2018^[23] that makes psychological domestic abuse and controlling behaviour a crime
• published the first-ever Violence Prevention Framework for Scotland,^[24] supported by over £2 million investment^[25] to take forward some priority activity to help build safer communities for everyone
• awarded £48 million to victims’ organisations over three years as part of our commitment to putting victims at the heart of the justice system, with over 20 organisations benefitting from the new Victim Centred Approach Fund for 2022-25^[26]
• extended the presumption against short sentences to 12 months or less in 2019 to enable a further shift away from ineffective short custodial sentences and help prevent reoffending – such sentences often disrupt factors that can help prevent offending, including family relationship, housing, employment and access to healthcare and support^[27]
• published a revised National Strategy for Community Justice,^[28] along with a delivery plan and performance framework, to drive further improvement work and support the long-standing ambition to encourage more widespread use of community interventions as an alternative to custody
• launched the Trauma-Informed Justice framework^[29] in May 2023, providing the foundation for training across justice, in order to improve the experience of victims and witnesses, and reduce retraumatisation
• introduced new, improved facilities that are designed to meet the specific needs of women in custody, focusing on rehabilitation and reducing reoffending, including the opening of HMP & YOI Stirling^[30] and community custody units in Dundee and Glasgow, supporting the delivery of trauma-informed care and management for women in custody
• promoted technological innovation including the Digital Evidence Sharing Capability Programme,^[31] currently in pilot in Dundee, which will provide a modern and innovative route for digital evidence submission into Police Scotland and the criminal justice system as a whole

A commitment to human rights and the ECHR

As set out in ‘Building a New Scotland: An independent Scotland’s place in the world’,^[32] the rights set out in the European Convention on Human Rights (ECHR)^[33] are already part of domestic law and cases can be heard in the Scottish courts, with an option for individuals also to apply to the European Court of Human Rights in Strasbourg for judicial remedy.

These rights would be at risk were the UK Government to withdraw from the ECHR, a move that would place the UK alongside Russia and Belarus as the only countries in Europe not signed up to this fundamental treaty.^[34]

Far from withdrawing from human rights commitments and institutions, Scotland wants to go further. In 2021, the Scottish Parliament voted unanimously^[35] to incorporate the UN Convention on the Rights of the Child (UNCRC)^[36] into Scots law so that those rights too can be directly justiciable in Scottish courts. However, as noted in ‘Building a New Scotland: Creating a modern constitution for an independent Scotland’,^[37] the powers of the Scottish Parliament to protect and promote human rights even in devolved areas are limited. In October 2021, the UK Supreme Court judgment on the UNCRC Bill^[38] found that some provisions were outwith the legislative competence of the Scottish Parliament. This followed a reference to the court made by the UK Law Officers.

Following that judgment, the Bill was amended and in June 2023, the Cabinet Secretary for Social Justice gave an update to Parliament on the Bill^[39] providing clarity about how the compatibility duty, which makes it unlawful for a public authority to act in a way that is incompatible with the UNCRC requirements, would be amended.

The conclusion was that the most effective coverage for the compatibility duty was for it to apply only when public authorities are delivering duties under powers in an Act of the Scottish Parliament.

The Scottish Parliament unanimously passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill for the second time in December 2023.^[40] The Bill received Royal Assent on 16 January 2024 and is now the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act.^[41]

As set out in 'Building a New Scotland: Education and lifelong learning in an independent Scotland',^[42] with the powers of an independent country, the Scottish Government would be able to incorporate – in full – the UNCRC into Scots law, further enhancing children’s rights. This commitment, combined with our approach to implementing Getting it Right for Every Child,^[43] aims to provide all children and young people with the best possible foundations for learning, regardless of their circumstance. ‘Building a New Scotland: Creating a modern constitution for an independent Scotland’^[44] sets out the intention to extend this approach by bringing forward further legislation to incorporate a further four human rights treaties into Scots law, as far as possible within devolved competence.

That paper also sets out that with independence, Scotland would have the opportunity to become a state party to treaties, conventions or agreements which the UK has not signed or ratified. That includes being able to identify areas where we could do things differently or go further than the UK, for the benefit of Scotland and our partners around the world.

As we set out in ‘Building a New Scotland: Creating a modern constitution for an independent Scotland’,^[45] independence “would help Scotland to secure rights and further embed equality by putting them at the heart of its constitution”. This Government proposes that the interim constitution of an independent Scotland: would embed human rights set out in the European Convention on Human Rights (ECHR), as well as the core international human rights treaties relating to economic, social, and cultural rights and the rights of children, women, minority ethnic communities, disabled people, and refugees, and the right to a healthy environment. The interim constitution would include a right to access a system of healthcare free at the point of need, and protect workers’ rights, including the right to strike. It would also embed equality safeguards and include a duty to advance equality of opportunity for all.^[46]