Building a New Scotland: Justice in an independent Scotland

Justice in an independent Scotland

Scotland’s justice system

As set out in ‘Building a New Scotland: Creating a modern constitution for an independent Scotland’,^[47] the Scottish Government would support a permanent constitution setting out and protecting fundamental values, such as the sovereignty of the people of Scotland, human dignity, equality, the rule of law, freedom, democracy, and justice.

Scotland has a long tradition of delivering effective justice - a reputation of which we are rightly proud – as set out in the Vision for Justice in Scotland.^[48] It is a system that is largely devolved with its own courts, tribunals, judiciary, prosecution service, police service, prisons, fire and rescue service, and other justice agencies, as well as its own legal profession. Scotland’s distinctiveness as a legal jurisdiction long pre-dates devolution and was preserved in the Acts of Union 1707.^[49]

The Scotland Act 1998^[50] saw powers for the Scottish justice system transferred to the Scottish Parliament. However, some legislative powers remain with the UK Government for example criminal law relating to firearms, and drug policy reform.^[51]

The following sections set out how this Scottish Government would develop aspects of the existing justice system to meet the needs of an independent Scotland.

Judiciary and courts

An independent judiciary^[52] is a cornerstone of a fair and just society and this, alongside the independence of the Lord Advocate,^[53] would be ensured in an independent Scotland. Scotland has a well-established and well-respected judiciary able to make carefully considered decisions without interference or influence from government or politicians.^[54][55] The senior judge and head of the judiciary is the Lord President of the Court of Session. The judiciary includes a number of Judges of the Supreme Courts; Sheriffs Principal; Sheriffs; and Summary Sheriffs. They have a jurisdiction which encompasses civil and criminal cases. Most cases are heard at sheriff court level and the highest courts in Scotland are the Court of Session for civil cases and the High Court for criminal. Cases at first instance and appeals are heard within the courts in Scotland. However, some decisions can be appealed to the UK Supreme Court.

The UK Supreme Court is currently the highest court of appeal in relation to Scottish civil cases. However, an appellant must obtain permission to appeal from the Court of Session or in certain cases, if permission is refused, from the UK Supreme Court. In Scottish criminal cases, the High Court of Justiciary sitting as an appeal court is the final court of appeal. Its decisions are not subject to review by the UK Supreme Court. However, there is one limited exception to this rule: the UK Supreme Court may consider ‘devolution issues’ arising in Scottish criminal cases. Some devolution issues arising in criminal cases have now become ‘compatibility issues’ under the Scotland Act 2012.^[56] However, it remains the case that the UK Supreme Court may not review the decisions of the High Court simply on matters of Scots criminal law.^[57]

The courts in Scotland are supported by the Scottish Courts and Tribunals Service^[58] which is an independent body corporate established by the Judiciary and Courts (Scotland) Act 2008,^[59] headed by the Lord President.

As set out in ‘Building a New Scotland: Creating a modern constitution for an independent Scotland’^[60] the key structures of Scotland’s devolved justice system would remain in place as part of an interim constitution. There would continue to be an independent judiciary and a robust and independent system of criminal prosecution and investigation of deaths, headed by the Lord Advocate. The independence and role of the Lord Advocate would be statutorily guaranteed.

The Court of Session (for civil matters) and the High Court of Justiciary (for criminal matters) would continue as the most senior courts in Scotland and collectively would become the Supreme Court of Scotland, replacing the current role of the UK Supreme Court. As set out in ‘Building a New Scotland: Creating a modern constitution for an independent Scotland’^[61] the development of a permanent written constitution would be an opportunity to consider the role of these courts in relation to enforcement of the constitution and the rights that arise under it. Consideration would be given to the role of the courts and the desirability of creating a specialised Constitutional Court for these matters.

Tribunals

Tribunals are a central part of the Scottish justice system and play a vital role in protecting people’s rights. People can go to a tribunal if they want to challenge a decision that affects them. Tribunals tend to be less formal and more accessible than the courts.^[62] Whilst there is unlikely to be much change to Scotland’s courts after independence, this would not be the case for our tribunals.

The Tribunals (Scotland) Act 2014^[63] created a new simplified statutory framework for tribunals in Scotland, bringing existing jurisdictions together and providing a structure for new ones. The Act created two new tribunals, the First-Tier Tribunal for Scotland and the Upper Tribunal for Scotland. The Lord President is the head of the Scottish Tribunals.

Whilst there are many areas covered by tribunals in Scotland including: housing and property, local taxation, health, and education, there are around 30 reserved tribunals where responsibility would require to be transferred to an independent Scotland.

Independence will mean that all aspects of the laws, rights, and duties pertaining to tribunals will be the responsibility of the Scottish Courts and Tribunal Service. Independence will mean that Scotland would be able to establish its own tribunals for social security, employment, and immigration and asylum, and consider how best to configure and manage the range of tribunal responsibilities that will transfer from Westminster.^[64] Independence would bring benefits in streamlining the tribunals system and focusing on meeting the needs of the people of Scotland.

The Smith Commission Agreement^[65] in 2014, outlined that the operation and management of the majority of reserved tribunals would be devolved – with the exception of a few that have national security implications.

In taking forward the development of the necessary legislative vehicle, the UK Government has adopted an approach which means that the continued effective operation of the tribunals across the UK will require a degree of coordination between the jurisdictions, particularly in relation to retaining some common rules and time limits.

The preferred approach is for a concordat agreement to be developed between both governments setting out the continued cooperation and coordination in relation to the development of new and existing rules. This includes the need for consultation and the need for a transfer of funds from one jurisdiction to another if new approaches or rules lead to costs elsewhere. The agreement of a concordat on this basis is an integral part of the UK’s offer on devolution. There is an inherent risk with this approach that whilst operation and management of the tribunals would be devolved, the ability of Scottish Ministers to take an alternative approach may be limited without being seen to break the terms of a concordat agreement.

The limitations of the devolution of reserved tribunals under the Smith Commission would not exist in a transfer to an independent Scotland. Independence would also ensure this transfer of powers, which has not yet progressed, takes place.

The laws governing the underlying substantive rights and duties would be the responsibility of the Scottish Parliament. Whilst a degree of coordination with the UK tribunal system is likely to still be desirable, Scottish Ministers would not be bound to retain common rules and time limits where divergence in these matters was considered preferable.

The tribunals which would not transfer under the Smith Commission Agreement would transfer with independence giving Scotland a coherent and unified tribunal system, including the Special Immigration Appeals Commission, Proscribed Organisations Appeals Commission, Pathogens Access Appeals Commission, and the Investigatory Powers Tribunal.

Policing and security

Police Scotland was established in 2013 by the Police and Fire Reform (Scotland) Act 2012,^[66] with a single police service replacing the previous eight service model, immediately becoming the second largest police service in the UK. Within Police Scotland there are 13 local policing divisions, each headed by a Chief Superintendent who ensures that local policing in each area is responsive, accountable and tailored to meet local needs. Each division encompasses response officers, community officers, local crime investigation, public protection, and local intelligence.

One of the advantages of having a single police service is the operational capability it can bring to bear in areas such as serious organised crime, where the local policing divisions are supported by national specialist divisions.^[67] The Specialist Crime Division provides investigative and intelligence functions such as Major Crime Investigation, Public Protection, Organised Crime, Counter-Terrorism, Intelligence, and Safer Communities. The Operational Support Division provides specialist support functions such as Road Policing, Firearms, Public Order, Air Support, Marine Policing, Dogs, and Mounted Branch, as well as Emergency and Events Planning. These national divisions ensure every community in Scotland has access to specialist policing services.

Police Scotland takes a rights-based approach to policing^[68] and one area where this is specifically important is around groups’ right to protest. The rights to peaceful public assembly and freedom of expression are important rights that the Scottish Government is committed to uphold.^[69] They are at the heart of all healthy democracies and allow us to express our feelings and identity by protesting about issues that concern us, and to celebrate culture and hold memorials to those who have been important in our lives. It is right that all of our communities should be able to participate in such activity.

The British Transport Police (BTP) in Scotland currently operates under a joint governance arrangement between the Scottish and UK Governments. The BTP Division in Scotland is integrated into the wider structure of the BTP, which operates on a GB-wide basis. In the event of a vote for independence, arrangements would be made to transfer BTP officers, staff and operations in Scotland to sit within Police Scotland. This would be done in a way that respects the specialisms and skills of BTP Scotland officers and which maintains safety and security on our railways.

As highlighted in the ‘Building a New Scotland: An independent Scotland’s place in the world’,^[70] this government believes that the best guarantee of security and stability for an independent Scotland is through strong relationships with our neighbours in these islands, Europe, and internationally.

An independent Scotland’s intelligence needs in this area would be met by the establishment of a single Scottish Security and Intelligence Agency which would significantly expand our security and intelligence capability. This new body would support Scotland’s role as a good global citizen, contributing to national security whilst promoting and protecting human rights, the rule of law, and democratic values. As in all other aspects of an independent Scotland, national security would be delivered in line with Scotland’s values, with institutions that would be accountable to Ministers and subject to scrutiny by Parliament, with an independent oversight mechanism to ensure transparent examination of the most delicate matters whilst respecting the need to protect sensitive information.

The specific capability of this agency would be informed by a comprehensive strategic threat assessment following a vote for independence, but the key functions it would deliver and how it would operate are already clear. A Scottish Security and Intelligence Agency would, at a minimum, undertake:

• risk and threat assessments
• investigation of threats
• liaison with Police Scotland and others (including the military), the UK, and internationally
• intelligence gathering, receipt, and handling
• production of open-source intelligence assessment and analysis
• protection of Scotland’s critical infrastructure
• cyber security functions
• monitoring of, and response to, threats to the democratic process
• protection of classified material
• security of ‘Information Agreements’ with the EU and other key allies

Prisons and reducing reoffending

There will always be a need for prison in our justice system. Prisons are a crucial component of the justice system and vital for supporting rehabilitation. However, The Scottish Government recognises that Scotland’s prison population, like that in England and Wales, is among the highest per capita in Western Europe.^[71] This Government will therefore continue to work to reduce the demand on prisons. Community interventions are more effective than short prison sentences at addressing offending behaviour and breaking the cycle of reoffending, although it should be noted that those who receive community sentences have often committed less serious crimes.^[72] Official statistics show that those released from a short prison sentence of 12 months or less are reconvicted nearly twice as often than those sentenced to serve community payback orders.^[73] Prison can by its very nature disrupt factors that can help prevent offending, including family relationships, housing, employment, and access to healthcare and support.^[74] That is why shifting the balance between custodial and community disposals remains at the heart of our Vision for Justice in Scotland^[75] and our National Strategy for Community Justice.^[76]

Responsibility for prisons is devolved. The Scottish Prison Service (SPS) currently operates sixteen prisons across the estate, with one prison operated by a private contractor.^[77] SPS is responsible for ensuring a safe and secure environment for all prisoners and staff, delivering a range of services in a way that is person-centred, inclusive, trauma-informed, and rights-based.^[78]

In an independent Scotland, the health, safety, and wellbeing of everyone living and working in Scotland’s prisons will remain a top priority. It would be this Scottish Government's intention that all prisons would be managed and operated as a public service and not be driven by profit. The Scottish Government policy on this is clear and this is why in 2024 this government ensured the safe and smooth transfer of HMP Kilmarnock, which was operated under a contract for 25 years since opening in 1999, into public ownership from a private provider.^[79]

With independence the current Scottish Government would maintain the policy of prison officers having a right to strike, which is different from the rest of the UK.

The full powers of independence could also allow a future government to consider issues such as the retirement age for prison officers. This is currently set by the reserved Civil Service pension scheme and means prison officers carry out frontline operational duties, including control and restraint, until the State Pension Age, which is due to rise to age 68.^[80]

The Scottish Government works to ensure the Scottish Prison Service has the resources required to respond to the dynamic, demand-led and extremely complex landscape in which they operate. The government continues to invest in the modernisation of the prison estate, having recently opened a new, state of the art female prison at HMP Stirling,^[81] as well as two pioneering community custodial units for women. In addition, replacements for HMP Inverness and HMP Barlinnie are being progressed. In an independent Scotland, there would be no change to the government’s work to continue to modernise the prison estate, ensuring prisons remain safe, secure environments while effectively supporting rehabilitation and contributing to our wider ambitions such as net zero.^[82]

Violence against women and girls

The Scottish Government remains committed to preventing and eradicating violence against women and girls as set out in the refreshed Equally Safe Strategy (2023).^[83] We want men to desist from all forms of violence against women and girls and perpetrators of such violence to receive a robust and effective response, including early intervention and prevention. Those who perpetrate violence and abuse against women, the majority of whom are men,^[84][85] must face up to their actions and accept responsibility^[86] and it is only through fundamental societal change that women can be protected.^[87]

This is also a key part of delivering ‘Scotland’s strategic approach to challenging and deterring men’s demand for prostitution and supporting the recovery and sustainable exit of those involved in prostitution’.^[88] Lived experience research^[89] that informed our approach highlighted the need to promote social inclusion and the importance of tackling stigma, with this being at the heart of the new support pathway pilot that will begin in summer 2024.^[90] We have also taken learnings from other international jurisdictions to inform this approach.^[91]

To that end we are working with justice partners to promote a system which identifies and addresses gender biases and encourages women’s active participation at all levels of the criminal justice system. The Vision for Justice confirmed the aim for a justice system which prioritises the experience of victims, and places women and children at the heart of service delivery. It also recognises and supports ‘Equally Safe’,^[92] Scotland’s strategy for preventing and eradicating violence against women and girls. The strategy sets out a vision to prevent violence from occurring in the first place, build the capability and capacity of support services, and strengthen the justice response to victims and perpetrators.

The Women in Justice Leadership Panel report,^[93] recognised that there is a need to improve gender and intersectional data collection and research across the justice system as well as deeper and meaningful engagement with women and girls with experience of the justice system. The report will promote the development of strategic outcomes which can guide and enhance the scope and uptake for gender competent policy making and the design of justice policies which can go further for women and help achieve our Vision for Justice in Scotland^[94]. Outputs from the Panel will inform, and complement, this work and our transformational reforms.

The Scottish Government is investing funding to support victims through a range of front-line specialist services. Our Victim-Centred Approach Fund^[95] will provide £48m to 23 organisations across Scotland over the period of 2022 to 2025. This includes £18.5 million for specialist advocacy support for survivors of gender-based violence. Our Delivering Equally Safe Fund^[96] provides £19 million annually to 121 projects combatting violence against women.

More recently the Scottish Government launched a pilot which will allow complainers in High Court sexual offences cases to have free access to transcripts of their court cases.^[97] This initiative was progressed having listened to campaigners and survivors’ concerns^[98] about the financial challenges associated with access to transcripts and how overcoming those barriers would form part of their recovery process.

It is important that we continue to listen to the experience of victims and their families and consider further improvements that can be made. We are committed to improving the police and health care response for people who have experienced rape or sexual assault.^[99] This Scottish Government disagrees with the UK Government’s reservation which exempts migrant women from the protections afforded by the Istanbul Convention.^[100]

Counter-terrorism

In an independent Scotland, all counter-terrorism legislation making powers would come to the Scottish Parliament, allowing decisions to be made in line with Scotland’s values of promoting and protecting human rights, the rule of law and democratic values. This could include further consideration of the powers currently lying with the UK Government such as those outlined in the Counter-Terrorism and Security Act 2015^[101] and the Terrorism Prevention and Investigation Measures Act 2011.^[102]

The Scottish Government already operates a devolved version of the CONTEST counter- terrorism strategic coordination approach, as well as delivering many devolved aspects of the CONTEST strategy.^[103] In an independent Scotland this would be expanded to cover those areas which are currently reserved and incorporate the activities of the new security and intelligence agency as set out earlier in this paper. Our aim would be to deliver continuity in policy as far as possible.

We would want to continue close liaison with other UK law enforcement agencies and want our future relationship to be governed by Memoranda of Understanding between Scottish policing and security bodies and their UK equivalents (including the National Crime Agency) as we would with other countries. As set out later in this paper, there is the opportunity to improve access to EU structures and tools in this area which have the potential to enhance security.

Cyber security

The adoption and use of digital technologies have increased rapidly in recent years, and this has benefitted the country hugely. However, alongside this digital transformation there have been changes in the types of threat we are now seeing, such as fraud increasingly moving online.^[104] Threats to our democracy and way of life no longer come only from ground, sea, or air. Conflict is both physical and virtual and there have been several instances of the use of cyber to undermine elections and the democratic process.^[105]

We want to ensure we are ready for what lies ahead as we become even more reliant on the internet and digital technologies and the cyber threat becomes more sophisticated. It will be of the utmost importance to keep Scotland safe: enabling us to defend our democracy and counter high levels of malicious state and criminal activity. We will want and need the capabilities, the networks, the relationships and the approaches to keep Scotland safe, secure, and resilient.

As set out in ‘Building a New Scotland: An independent Scotland’s place in the world’,^[106] these objectives are eminently achievable. Following the restoration of its independence, Estonia, with a population only a quarter that of Scotland,^[107] has become an exemplar for secure digital public services and has demonstrated that small states can outperform their bigger neighbours when it comes to security.^[108] The paper also provides further information on the cyber resilience aspects of our proposals.^[109]

Border control

As set out in ‘Building a New Scotland: Migration to Scotland after independence’^[110] there would be a new body established with overall responsibility for border security – the Scottish

Immigration and Border Agency (SIMBA). The Scottish Government would seek to cooperate with UK and Ireland on matters related to border control and, whilst Scotland would not be part of border control elements of the Schengen Agreement because of the Common Travel Area, even as an EU member state, the government would collaborate on EU migration policy and would fully participate in EU refugee resettlement and relocation initiatives.

The migration paper also sets out that responsibility for immigration and asylum tribunals would transfer from HM Courts and Tribunals Service to the Scottish Courts and Tribunals Service.

With this responsibility, better outcomes for migrants would be sought through simplifying the immigration system and empowering and training caseworkers to make better decisions.^[111] As noted in the migration paper, prior to the pandemic, three-quarters of all judicial reviews initiated at the Court of Session were related to immigration decisions.^[112]

That migration paper also sets out an important opportunity from independence which is to implement effective alternatives to detention and removal. Detention should only be used sparingly and only when justifiable. These alternatives would seek to provide a better balance between the rights of individuals and the duty to protect the public. As with the approach to justice, dignity, respect, and fairness would be at the heart of Scotland’s approach to enforcement, as it would for all aspects of the immigration system.