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Your Scotland, Your Voice: A National Conversation




7.1 Scotland requires a legal system that supports a safe and just society, and tackles societal issues like drug and alcohol misuse and violence, including domestic and sexual violence. Human rights, liberties and equalities should underpin Scottish society, ensuring justice and tolerance for everyone, and protecting the rights of citizens against the state, and reflecting and protecting the diversity of society, tackling issues of sectarianism and discrimination.

7.2 Scotland has a proud legal tradition, securing the basic rights of the citizen within an effective justice system. Much of this system has been devolved, but important areas remain reserved: laws to tackle drugs, firearms and terrorism; the legal machinery for safeguarding the human rights of Scottish citizens; and important parts of the judicial system: aspects of the United Kingdom Supreme Court and many tribunals.

7.3 The Commission on Scottish Devolution recognised that the principle of devolution would place responsibility for these matters in Scotland, but only followed this argument to its conclusion in their recommendations on airguns, drink driving limits and speed limits. There is a separate criminal jurisdiction in Scotland, and responsibility for the whole body of criminal law could now be devolved to the Scottish Parliament as the legislature for that jurisdiction.

7.4 Independence would give Scotland full responsibility for its court system, its approach to international obligations of law and rights, and allow Scotland to protect the human rights of its citizens, guaranteeing their position within and against the state.


Current position

7.5 The Scottish legal system has long been distinct from that in the rest of the United Kingdom. Its integrity and independence were secured in the Acts of Union, and administrative responsibility for running the justice system remained in Scotland. Devolution also gave Scotland legislative responsibility. The Scottish justice system has its own court system; different professional legal bodies (the Law Society of Scotland and the Faculty of Advocates); its own legislation; its own police forces; its own independent prosecution, headed by the Lord Advocate; its own prison and criminal justice social work services.

7.6 Scotland has used its devolved responsibilities to tackle a range of long-term societal problems, and to reform the system itself. These initiatives demonstrate the principle of devolution: problems which are endemic to Scotland are tackled in Scotland, by a coherent legislative, policy and judicial framework to tackle offenders, and reduce offences.

How is this government
going to make Scotland
safe for us to live in?

(Kilmarnock National Conversation event, 1 June 2009)

7.7 Although the justice system in Scotland is largely devolved, there are several important areas which are reserved to the United Kingdom: terrorism, legal safeguards for human rights, drugs, firearms, alcohol taxation, drink-driving limits, and some jurisdictions of the United Kingdom Supreme Court. If the Scottish Parliament were responsible for these areas there would be a more fully integrated justice system, with no gaps in the administration of justice in Scotland.

Justice recommendations of the Commission on Scottish Devolution

7.8 The Commission recommended that Scotland should be responsible for:

  • the regulation of airguns
  • licensing and control of controlled substances for the treatment of addiction
  • drink-driving limits
  • the national speed limit in Scotland 113

7.9 Several of the Commission's recommendations reflect long-held views of the Scottish Parliament. For example, the Scottish Parliament has called for a lower drink-driving limit: legislative responsibility would allow the Scottish Government's Road Safety Framework to be taken forward. 114 The Scottish Parliament has also called repeatedly for responsibility for the regulation of airguns, which are a particular problem in Scotland, accounting for half of all firearm offences in 2007/08.

7.10 There would remain limitations in the areas affected by the Commission's proposals. The Scottish Parliament could make laws on airguns, but not on other firearms. It would not be able to set differential drink-driving limits for certain groups of drivers, such as young drivers or commercial drivers. It would be able to set a national speed limit in Scotland, but would be unable to set related penalties.


7.11 A comprehensive justice system that tackles societal problems is essential for any nation. Despite the strengths of the Scottish criminal justice system, gaps and anomalies remain, preventing the full integration of law and accountability. There is no reason why all aspects of the legal system should not be fully devolved to Scotland, given its existence as a distinct and independent jurisdiction, but such a decision is dependent on the United Kingdom. Independence would ensure that full responsibility for justice matters rested within Scotland.

Drugs legislation

7.12 Much of drugs policy is already devolved, including the national drugs strategy, funding arrangements for drug treatment services and the organisation of delivery structures. However, classification of drugs and regulation of offences and penalties is reserved, as are the statutory functions of the Advisory Committee on the Misuse of Drugs, which reviews the classification of drugs and advises Ministers.

How does the government intend to increase
the service of help in rehabilitation to young
people who have alcohol/drug dependency
and are involved in criminal activity, to
bring them back into society?

(Melrose Summer Cabinet, 28 July 2009)

Firearms legislation

7.13 Responsibility for all firearms legislation would allow the firearms regime to be made consistent, easier to understand and easier to enforce. The Scottish Parliament would be better able to protect communities from illegal or irresponsible use of firearms, as it has with knives and other offensive weapons. A coherent firearms policy for Scotland would make it easier for legitimate firearms users to go about their activities, supporting the economic contribution of shooting sports and related industries. The risk of cross-border traffic in illegal firearms can be addressed in the same way as it has been for differences in the law on knife licensing and alcohol sales.


Current position

7.14 The Acts of Union guaranteed continued autonomy for Scotland's legal system. Scots Law, and the principal institutions administering it, have remained separate and distinct for the last 300 years. The principal effect of devolution was to give the new Scottish Parliament responsibility for maintaining a large proportion of the statute law (Acts of Parliament) which the Courts implement. The major reserved matters are some jurisdictions of the new United Kingdom Supreme Court and many reserved tribunals under the auspices of the new United Kingdom Tribunals service.

7.15 The Supreme Court was established in October 2009 and its judges are appointed on the recommendation of the Prime Minister. It sits as a Scottish Court to hear appeals from civil cases arising in Scotland, and also hears criminal cases where human rights are at issue, although most final appeals relating to criminal cases continue to be heard by Scottish courts. This split in the final jurisdiction on criminal matters risks inconsistency and confusion. The Supreme Court is required to include judges from each United Kingdom jurisdiction, but a clear majority of its judges are from England and Wales. It is not clear if the new arrangements will safeguard the continued distinctiveness of Scotland's legal system or the coherence of Scots law as a body of law.

7.16 The United Kingdom Tribunal Service was created in 2008. Certain tribunals it administers sit in Scotland as British institutions, handling cases that would otherwise be heard by the Scottish Courts. The creation of the UK Tribunal Service was intended to rationalise the system in England and Wales but has in some cases added a further layer to the framework for administrative justice in Scotland.

7.17 Other reserved judicial matters include the remuneration arrangements for senior judges and the appointment of Scotland's most senior judges are still made on the recommendation of the Prime Minister, on the nomination of the First Minister.

Courts recommendations of the Commission on Scottish Devolution

7.18 The Commission considered the complexity of the tribunal system in Scotland, and the development of a split in the criminal law. On both matters, it found evidence of concern, but the Commission concluded both to be beyond its remit and made no recommendations. 115

Full devolution

7.19 Full devolution would allow the concerns found by the Commission on Scottish Devolution to be addressed. In particular, the Supreme Court could have a Scottish Chamber, with a majority of judges expert in Scots law and practice, which was the responsibility of the Scottish Parliament. Such a Chamber could be properly integrated into the Scottish legal system, addressing the concerns about splits in the criminal law. Devolution of all tribunals would allow a Scottish tribunal service to be established, integrated into the Scottish court system and ensuring greater efficiency. Full devolution would also allow Scotland to introduce rational criteria, consistently applied, to the allocation of jurisdiction between the courts and tribunals.


7.20 The judicial branch is one of three pillars of government in most states. An independent Scotland would continue its tradition of a robust judiciary holding the executive and Parliament to the law, as well as administering and dispensing criminal and civil justice in the normal way. Scotland would need to consider the architecture of the court system, in particular whether there was a need for a Scottish Supreme Court on the United Kingdom model, or whether existing Scottish court structures would suffice. However the functions of a supreme court in interpreting the legal aspects of the constitution would remain the function of the Scottish judiciary.

7.21 The Scottish legal system would continue its traditional openness to the positive influence of other jurisdictions, particularly the Courts of European institutions. The principal difference would be that Scotland's legal system would decide how to use these external influences, including the rich jurisprudence of the rest of the United Kingdom and the Commonwealth, rather than having some crucial decisions made by judges from other jurisdictions.


Current position

7.22 The Human Rights Act 1998 incorporated the European Convention on Human Rights into United Kingdom domestic law by requiring public authorities to act in accordance with the Convention rights. The Scotland Act provides that Scottish Ministers cannot act incompatibly with any of those rights and that the Scottish Parliament cannot legislate incompatibly with those rights.

7.23 These statutes are reserved. The United Kingdom Parliament still claims competence to legislate in ways which are incompatible with the European Convention on Human Rights and the human rights of Scottish citizens can therefore be encroached upon by Westminster without reference to the Scottish Parliament and Government. Greater protection has been given to the human rights of Scottish citizens in some devolved areas than has been the case in England and Wales, for example on the retention of fingerprints and DNA samples. However, the Scottish Parliament and Government cannot protect against threats to those rights if the matter is reserved, for example the introduction of identity cards.

Human rights recommendations of the Commission on Scottish Devolution

7.24 The Commission did not consider the wider issue of human rights, their place in the governance of Scotland, and the responsibility of the Scottish Parliament to protect the human rights of its citizens from legislation in the United Kingdom Parliament.


7.25 With independence, Scotland could properly entrench the human rights of Scottish citizens in the constitutional framework of the nation. This approach would reflect international best practice, and the international commitments Scotland has undertaken as part of the United Kingdom. Instead of regarding human rights as a burden on the government, an independent Scotland could take a positive approach to the place of rights in its political and legal system, guaranteeing the position of the individual against the state.

7.26 As an independent state, Scotland would generally inherit current international obligations, and it would be for the Government and Parliament to consider how these were taken forward in the future, including, for example, the domestic protection of the rights under the jurisdiction of the European Court of Human Rights. Independence would also give Scotland the ability to choose how to implement international obligations in areas which are currently reserved in a way sympathetic to local legal traditions, and national concerns.


7.27 Scotland's legal system has long been a distinctive feature of the nation. Devolution has provided the opportunity to update and modernise some of its features, and direct the system to addressing societal problems that has faced Scotland. However, some of the most important of these - drugs, firearms, aspects of alcohol policy - remain reserved.

7.28 The recommendations of the Commission on Scottish Devolution would provide some further responsibilities to Scotland, but not in these central areas. The principle of devolution should apply to the justice system as a whole, and give full responsibility to the Scottish Parliament as the law making body for this jurisdiction.

7.29 Independence would also give Scotland responsibility for its whole judicial system; and for the framework of fundamental rights for its citizens.