Building a New Scotland: Justice in an independent Scotland

Making a difference

Independence is about more than building the structures needed for a functioning state. There are a number of opportunities arising from independence which would be available to seize. In doing so, we would be building on Scotland’s strong track record in justice outcomes.^{[113] [114]} For example, as outlined earlier in this paper, we have seen the level of recorded crime falling to near 50-year lows^[115] and homicide at the lowest levels since comparable records began.^[116] We have taken concerted action to focus on Scottish needs and circumstances as well as establishing a preventative approach through initiatives like the Scottish Violence Reduction Unit.^[117] Independence would provide the opportunity to apply this to a number of currently reserved areas.

We know that to address the causes of crime Scotland’s public services together must tackle societal inequalities such as child poverty, mental ill health, addiction, and adverse childhood experiences.^[118] The broader economic, employment, and social security powers that will come with independence, as set out throughout the Building a New Scotland series of papers,^[119] mean that we can take a more effective approach to improving justice outcomes, reducing burdens on the justice system and reducing the number of victims of crime.

Serious organised crime

Organised crime is a global issue, meaning that Police Scotland and the Crown Office and Procurator Fiscal Service (COPFS) already work closely with partners in the rest of the UK, Ireland and internationally to tackle serious organised crime groups whether based in Scotland or elsewhere. Collaboration was at the heart of our vision for the Scottish Crime Campus at Gartcosh. Initially, this saw Police Scotland, COPFS, Scottish Police Authority (SPA) Forensics, the National Crime Agency, and HMRC come together in a building designed to encourage collaboration and information sharing. The collaborative model has continued to evolve. Eighteen law enforcement agencies are now represented under one roof and we will continue to build on that partnership approach to tackling serious organised crime.

The organised crime landscape is currently complex with a mixture of UK and Scottish legislation, agencies, and policies. In addition, some key tools have been removed from Scottish bodies as a result of Brexit.^[120] While the UK-EU Trade and Cooperation Agreement^[121] goes some way to remedying that capability gap, it cannot provide for the level of cooperation that Scotland previously enjoyed when part of the EU.

While operational cooperation is currently good,^[122] we believe there is scope to simplify this landscape and make it more effective through independence. Our focus would be on simplifying the policy and legislative landscape, restoring EU cooperation and tools, and ensuring a streamlined operational landscape with minimum interfaces. By doing so, our aim would be to make our justice response to a serious threat to our communities^[123] more effective over time.

As noted in ‘Building a New Scotland: An independent Scotland in the EU’,^[124] by participating fully as an independent state in EU police and judicial cooperation systems, we would improve intelligence and information-sharing with other EU member states’ police forces and public prosecutors. Regaining access to tools such as the Schengen Information System and European Arrest Warrant would mean Scotland’s police and prosecutors are better equipped with more tools to combat increasingly sophisticated criminal networks.^[125]

Firearms

Air weapons licensing was devolved under the Scotland Act 2012.^[126] Following that, in 2016 the Scottish Government introduced a system of air weapon licensing under the Air Weapons and Licensing (Scotland) Act 2015.^[127] As such, Scotland is the only part of Great Britain to licence air weapons, and air weapon licensing gives Police Scotland the power to remove potentially deadly weapons from the hands of those who cannot safely possess them. The latest published firearms offence statistics (for 2021-22) showed that, since the introduction of the licencing legislation in 2015 we have seen offences involving an air weapon fall by over a half from 190 to 83 offences.^[128]

Aside from air weapons, the remainder of firearms law is reserved, and its implementation is a matter for the Chief Constable of Police Scotland. If the Scottish Government had full responsibility for firearms legislation, we would give early consideration to:

• aligning the requirements for a shotgun certificate with the requirements for a firearm certificate
• introducing a minimum age for a shotgun certificate
• reviewing additional regulation of High-Energy Rifles (capable of muzzle energies in excess of 10,000 foot-pounds), including consideration of a ban on civilian ownership

Human trafficking and anti-slavery

The Human Trafficking and Exploitation (Scotland) Act 2015,^[129] which was passed unanimously by the Scottish Parliament,^[130] gives police and prosecutors greater powers to detect and bring to justice those responsible for trafficking as well as strengthening protections for survivors.

Sections 9 and 10 of the 2015 Act require Scottish Ministers to secure support and assistance for adult victims of human trafficking where there are reasonable grounds (as currently determined through the National Referral Mechanism) to believe an adult is a victim of human trafficking and/or slavery, servitude, and forced or compulsory labour.

Under the Scotland Act 1998,^[131] implementation of international law in non-reserved areas is devolved. This means that the Scottish Ministers have obligations to determine how victims of trafficking are identified and subsequently supported. The Human Trafficking and Exploitation (Scotland) Act 2015^[132] places this on a statutory basis. However, recent UK Government legislation intends to prevent potential victims of trafficking, who are deemed to have entered the UK ‘illegally’, accessing the safety and support available under our devolved legislation.

The UK Government’s ‘hostile environment’ has included successive pieces of legislation (Nationality and Borders Act 2022^[133] and Illegal Migration Act 2023 (IMA))^[134] which appear intended to erode the rights of potential victims of human trafficking in the UK. For example, the provisions within the IMA seek to disapply sections 9 and 10 of the Human Trafficking and

Exploitation (Scotland) Act 2015^[135] for individuals subject to the removal duty. The UK Parliament’s Joint Committee on Human Rights warned^[136] during the IMA’s passage that it breached the Council of Europe Convention on Action Against Trafficking in Human Beings and is likely to breach obligations on the UK under the European Convention on Human Rights.

In line with ‘Building a New Scotland: Migration to Scotland after independence’^[137] the Scottish Government is fully committed to tackling human trafficking and exploitation. We believe that by providing safety and a recovery space to victims, we would meet the requirements detailed in the Council of Europe Convention on Action against Trafficking in Human Beings^[138] and foster an environment which would provide our law enforcement with the optimum conditions to disrupt those behind this evil behaviour. We firmly believe that people seeking asylum should be provided with the right to work, have access to employability, and social security support. These key interventions would reduce vulnerability to human trafficking and exploitation.

An independent Scotland could decide whether to carry forward or remove any of the UK’s declarations and reservations which qualify the extent to which the provisions of some treaties currently apply to it. This Scottish Government disagrees, for example, with the UK Government’s reservation which exempts migrant women from the protections afforded by the Istanbul Convention.^[139]

Drug law reform

In January 2021 the Scottish Government announced a National Mission to reduce drug deaths and improve lives.^[140] The Mission takes a holistic, public health response to the challenge.

This includes mobilising an emergency response, focusing on harm reduction and preventing fatal overdoses; reducing risk by improving treatment and recovery services; and reducing vulnerability by addressing the social determinants of health by improving access to quality housing, social security, employment, and social connection. It also recognises the need to address stigma, respond to the voices of people with lived and living experience, and support a resilient workforce.

The Scottish Government made an additional £250 million funding available over the duration of this parliament to deliver the National Mission on Drugs^[141].

In Scotland, we continue to view drug use as a health condition and promote a public health approach.^[142] However, we are constrained because the law on the control of drugs, set out in the Misuse of Drugs Act 1971,^[143] is reserved and limits the effectiveness of our public health approach.^[144] It criminalises people who experience the inequalities that drive drug use^[145] and presents a barrier to seeking treatment.^[146]

In July 2023, the Scottish Government published ‘A caring, compassionate and human rights informed drug policy for Scotland’^[147] at the Global Commission on Drugs Policy Annual General Meeting which was held in Edinburgh and included former heads of state and heads of government from around the world. The paper outlined what a progressive, evidence-based drugs policy would look like with public health and reduction of harm as its underlying principles.

Key to this is approaching the issue from a public health and human rights, and not a criminal justice, perspective. Reducing drug deaths would not just make us safer - the traditional criminal justice measure of success - but crucially reduce suffering, increase wellbeing, and improve Scotland’s health.^[148]

It is clear that the Scottish Government’s ambition to implement evidence-based policies based on a public health approach is limited by the UK’s legal framework within which it must currently operate.

The Scottish Government has repeatedly called for a review of drug laws, including the Misuse of Drugs Act 1971, and has supported the many other calls from experts^[149] to do the same. Other UK legislation also limits a public health approach, and in the past we have asked for the exemption in the Equality Act 2010 (Disability) Regulations (2010),^[150] which excludes people with substance dependency from the protected characteristic of disability, to be removed.

One of the main proposals that the Scottish Government has consistently called for is the creation of a statutory framework under which Supervised Drug Consumption Facilities (SDCF) would be able to operate. These facilities would provide a supervised and safe space for people who use drugs and give immediate benefits to individuals, their families, and the wider community.^{[151] [152]}

However, the UK Government has resisted calls to establish a statutory framework or offer support for an SDCF pilot in Glasgow despite recommendations from the Scottish Affairs Committee of the UK Parliament.^[153]

In September 2023, the Lord Advocate responded to a request for a focused statement of prosecution policy in relation to the proposed SDCF facility in Glasgow, which was also provided to the Scottish Parliament’s cross-committee on tackling drug deaths and drug harm.^[154] In that response, the Lord Advocate said that she would be prepared to issue a public statement of prosecution policy that it would not be in the public interest for people using a pilot SDCF to face prosecution for possession within the facility. This has allowed Glasgow Health and Social Care Partnership to move forward with their plans to establish a pilot SDCF in Glasgow which is due to open in summer 2024. This is a novel approach, and in the absence of a change to, or exemption under, the Misuse of Drugs Act 1971, such a facility will be constrained in ways that SDCFs in other countries are not.^[155] Furthermore, the Lord Advocate has only considered her position with regards to the specific proposal put before them regarding the facility in Glasgow. As such, a legislative solution would provide the most certainty for this approach and is what would be taken forward in an independent Scotland.

Other harm reduction proposals that would be taken forward under this government’s proposals include a review of the drug classification system and clarification of the law so that services can provide drug paraphernalia legally. Also utilising licensing powers to enable and encourage a full suite of treatment options, including the introduction of drug checking facilities, and the reclassification of naloxone from prescription-only to a pharmacy or general sale medicine.

We recognise that there is not one country in the world that has stopped drugs crossing its borders. There are many factors that have an impact on drug use and the evidence indicates that decriminalisation directs more people into treatment.^{[156] [157]} Therefore, and more clearly linked to justice, this Scottish Government has developed proposals to decriminalise some drugs for personal use. However, we are clear that this would not solve the drug crisis by itself but could provide a framework within which the existing policies to help, treat, and support people rather than criminalise, stigmatise and fail them, can be better pursued.

It is clear that the drug market continues to provide revenue to fund other illegal activity,^[158] further driving violence and crime in our communities, an analysis of the social costs of drug use in Portugal, which decriminalised drugs in 2001, found that they had dropped by 18% by 2010.^[159] Decriminalisation was linked to a ‘significant reduction’ in costs associated with criminal proceedings when supported by a large-scale support programme.^[160] In 2018, Canada shifted from prohibiting and criminalising cannabis to an approach grounded in regulated and controlled access, production, and distribution to minimise the risks and harms for individuals and communities.^[161] By the first half of 2023, more than 70% of cannabis consumed in Canada was from a legal source, an increase from 22% in 2018, with the available evidence indicating a substantial displacement of the illicit market.^[162] The Global Commission on Drug Policy has predicted that the reach and violence of organised criminals would be significantly reduced with decriminalisation.^[163] While not committing to any changes to regulate supply, this government does provide a proposal to explore the relative merits of these ideas through citizen engagement and expert assessment.^[164]

The Scottish Government has committed to taking a rights-based approach to transforming the way services and support are delivered. The National Collaborative Charter of Rights^[165] aims to empower people affected by substance use so that their voices, and critically, their rights, are acted upon in policy and decision-making at a national level. It will also set out how the rights to be included in a forthcoming Human Rights Bill can be effectively implemented in the drug and alcohol sector.

We have been clear that the simplest and quickest way for these policies to be enacted now would be for the UK Government to change its UK-wide drug laws. Independence would provide Scotland with the necessary powers to achieve the overarching ambition of the Scottish Government National Mission. It would ensure that we could embed a fully-fledged public health approach so that no person finds themselves dependent on substances, but that if they do, they should be supported and not criminalised for that condition.

A fairer, safer, and healthier country must care about all its citizens and be inclusive of those with health conditions such as drug dependence. Future generations, our children and grandchildren, have a right to health and happiness. They have the right to live in a country where they are helped and supported, not stigmatised and punished for their health conditions.

Our proposals present an opportunity to do something different, something bold and progressive, which would make a real difference to people’s lives. They build on the international evidence, and set out a policy based on human rights, that prioritises interventions that will work. Independence would provide the opportunity to implement these policies.

Gambling

Another area where a public health approach would be taken is in relation to gambling laws. Gambling is regulated by the UK Gambling Act 2005,^[166] which covers all forms of gambling across the UK and established the UK-wide Gambling Commission.^[167] Responsibility for licensing gambling in Scotland lies with local licensing boards and the Gambling Commission. Currently the Scottish Government’s ability to take any direct action is limited as gambling is a largely reserved matter, meaning Scottish Ministers currently have very limited powers to direct licensing boards and have no power over the Gambling Commission under the legislation.

An estimated 18,000 adults in Scotland are classed as problem gamblers and a further 68,000 are at risk.^[168] These harms affect people’s financial wellbeing, relationships, and health. Negative effects can include loss of employment, debt, crime, breakdown of relationships, and the deterioration of physical and mental health.^[169] Gambling-related harms are complicated in origin and affect a range of people. These harms are not limited to adults and can be seen in children through gambling-like activities in gaming (such as loot boxes and skin betting) through the games and platforms they access.^[170]

With the full powers of an independent nation, the Scottish Government could consider a range of measures, such as raising the legal age of gambling and reviewing how gambling appeals to young people, both online and in person. We know that young people themselves are concerned about gambling harm^[171] and we would give them an active role in shaping future policy.