Scotland's Place in Europe: security, judicial co-operation and law enforcement

Chapter Three: Scotland's voice in the EU negotiations

10. For the purposes of EU membership, the UK is the Member State and the UK Government acts on behalf of all jurisdictions that comprise the UK. Scotland's voice is represented in the EU in various ways, for example through the participation of Scottish Ministers in UK delegations in Council, Members of the European Parliament for Scotland formulating EU legislation in the European Parliament and Scottish law enforcement agencies and prosecutors engaging directly with their EU counterparts.

11. The UK, including Scotland, has been an active, influential and generally respected participant in Justice and Home Affairs ( JHA) matters in the EU. From participating in expert groups, working to improve draft legislation, all the way through to practical or operational contributions, this influence has been beneficial in both directions – allowing EU legislation and provision to be developed in a way that would fit with the legal traditions of the UK, and facilitating the sharing of expertise.

12. As set out above, Scotland has always had its own separate and independent legal and justice systems and agencies. Scottish criminal law, including the procedural rules which apply to criminal proceedings in Scotland, differs significantly from that in the rest of the UK. The Scottish Ministers have highlighted this to UK Government Ministers on many occasions and have emphasised the need to take account of Scotland's distinct justice system in the negotiation process. We share the objectives of the UK Government in the area of JHA matters to ensure not only the security and safety of our citizens but also EU citizens. We stand ready to work constructively with the UK Government to ensure that practical solutions, which take account of these differences, are put in place.

13. The Scottish Government recognises that decisions about justice and security do not exist in isolation from other parts of the negotiation process. Given our collective interest in these JHA measures in ensuring the safety and security, not only of our citizens but also those of the other 27 Member States, we need to ensure that justice and security issues are not de-prioritised during negotiations to achieve compromise in other areas. During negotiations the voices of the other 27 Member States will need to be taken into account. We must remain open to addressing any concerns they have and to working with them to develop solutions which promote our collective safety and security across the EU.

14. Our justice agencies, including Police Scotland and COPFS are preparing for organisational readiness as a consequence of Brexit. In order to ensure that the particular interests of those agencies, and the procedural and operational differences between Scotland and other parts of the UK are recognised, their concerns must be taken into account and their voices must also be heard at UK level.

15. The Joint Ministerial Committee on EU Negotiations ( JMC( EN)) has been established with the aim of providing a means for the devolved administrations to be fully engaged in the UK Government's approach to Brexit. The discussions in JMC( EN) have up to this point in time fallen short of the ambition set out in its terms of reference, and of the Prime Minister's own commitment to "full involvement" of the devolved administrations and have singularly failed to meet the forum's terms of reference.

16. On 2 May 2018, the JMC( EN) endorsed the creation of a Ministerial Forum ( EU Negotiations). This Forum sits beneath and will feed into discussions at the JMC ( EN), specifically in relation to the UK positions for the EU- UK Future Relationship. The first meeting of the Forum took place on 24 May 2018 in Edinburgh and our expectation is that this will enable the devolved administrations to be involved in the negotiations in a more meaningful way.

17. As the Government responsible in Scotland for many of the issues being discussed in the negotiations, we remain committed to seeking to secure more substantial opportunities to input into the negotiations. It is vital that we are given these opportunities before the UK position is finalised, and before issues are agreed in the negotiations.