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A MESSAGE FROM THE FIRST MINISTER
Welcome to the National Conversation - a unique opportunity for you to consider and debate the most important issues affecting the future of Scotland
Gaelic language version
Over the last ten years the Scottish Parliament has shown how Scotland can successfully govern itself by providing distinctive, innovative solutions to issues that matter to Scotland.
I am proud to serve as Scotland's First Minister, and proud of what we have achieved in that time. I believe that by abolishing tuition fees, providing care for older people, freezing the Council Tax, cutting business rates, delivering record numbers of police officers and addressing health and education, the Scottish Parliament and Government have made a real difference to the lives of the people of Scotland.
But devolution is a process not an event and the time is now right to review and further strengthen the responsibilities of the Scottish Parliament.
The current economic crisis has clearly demonstrated many weaknesses in the existing constitutional settlement. Scotland has very limited scope to lower tax rates to provide a fiscal stimulus. We cannot borrow money to fund public works, or make changes to benefits, pensions or tax credits to meet Scottish needs. Instead, Scotland is dependent on decisions made by the UK Government at Westminster.
Our choices are also limited on issues such as climate change, alcohol misuse and investment in renewable energy.
We believe that Scotland should be like any other independent European country, working in partnership with our neighbours and with our own voice and the full ability to meet the needs of the people of our nation. This is why we plan to hold a referendum at the end of 2010, so you can decide.
But what does an independent Scotland mean to you?
The National Conversation is about giving you the facts, hearing your views and providing opportunities to debate some very serious issues about the future of Scotland. We believe that, only then, can you make informed choices when the referendum comes.
This leaflet is part of that ongoing process of keeping you informed about the opportunities and impact of an independent Scotland.
I look forward to debating these issues with you.
Rt Hon Alex Salmond MSP
The Scottish Legal System
Scotland has its own independent legal system, and a distinct legal profession and courts system. That independence was recognised and specifically safeguarded in the Treaty of Union in 1707.
The Scottish legal system is a sophisticated mix of common law and European traditions which operates well and has done for hundreds of years. Most powers in relation to law and justice are devolved to the Scottish Parliament, but there are significant areas where powers are reserved to the UK Government. If powers in these areas were devolved to the Scottish Parliament we could act faster to develop policies best suited to the needs of the Scottish people.
Human Rights
The European Convention on Human Rights is part of Scots law by virtue of the Scotland Act 1998 and the Human Rights Act 1998. These statutes are reserved, so human rights law can be changed only by the UK Government, even though it can have significant implications for Scottish public authorities and, indeed, taxpayers. In many cases, considerable time and resources can be saved if we have the powers to legislate in our own right, without being constrained by UK Goverment laws.
Human Rights Case Study
In 2007 the House of Lords held in the Somerville case that claims under the Scotland Act against the Scottish Ministers for alleged breaches of human rights were not subject to a one-year time bar, even though such claims under the Human Rights Act are subject to such a time bar. This resulted in the Scottish Government having to set aside over £67 million to meet claims by prisoners. As only Westminster can legislate to remove this anomaly, we had to obtain the agreement of the UK Government to a change in the law, which took nearly 18 months. As a result we have had to pay out over £11 million in compensation and legal costs. The problem could have been addressed more quickly and cost-effectively if the Scottish Parliament had been able to legislate without first securing a transfer of power from Westminster.
UK Supreme Court
When it is established in October 2009, the UK Supreme Court will be reserved. It will sit as a Scottish Court to hear appeals from civil cases arising in Scotland, and to determine certain points of law in criminal cases. Appeals relating to criminal cases will continue to be heard by the Appeal Court in Edinburgh.
This split in final jurisdiction on criminal matters has already given rise to concern about inconsistency and confusion. Furthermore, although the court is required to include judges from each UK jurisdiction, a clear majority of judges will be from England and Wales. It is not clear if adequate safeguards to ensure the continued distinctiveness of Scotland's legal system can be provided by these arrangements.
The Scottish Parliament is best placed to make decisions about how to provide a coherent courts system for Scotland which protects that distinctiveness, and maintains its strong contribution to international jurisprudence.
"The Scottish Parliament is best placed to make decisions about how to provide a coherent courts system for Scotland which protects that distinctiveness, and maintains its strong contribution to international jurisprudence."Drugs Policy
Much of drugs policy is devolved. This includes the development of the Scottish Government's strategy, funding arrangements for drug treatment services and the organisation of delivery structures. However, the main primary legislation governing the regulation of substances - the Misuse of Drugs Act 1971 - is reserved. This means that only the UK Government can classify drugs according to its view of their harmfulness. It also governs the statutory functions of the Advisory Committee on the Misuse of Drugs which is responsible for reviewing the classification of drugs and providing advice to UK Ministers.
Giving us responsibility to classify drugs in Scotland means we could decide the appropriate classification level of specific drugs, taking into account Scotland-specific patterns of drug consumption, law enforcement and criminal justice policy.
Firearms Law
We have called for all firearms law to be devolved. This would allow a coherent approach for Scotland and avoid complexity or potential loopholes.
In 2007-08 half of all offences in Scotland involving firearms were air gun offences. We would legislate to require all air weapons to be licensed in line with other lethal firearms, which should in time reduce the number in our communities. People applying for an airgun licence would need to prove they had a good reason to hold a weapon and a basic level of competence in safe handling.
Drink Drive Limit
To help tackle drink driving there have been widespread and repeated calls for a reduction in the drink drive limit in Scotland from 80mg per 100ml of blood, to 50mg. As the matter is reserved, the power to bring forward a reduction lies with the UK and not the Scottish Government.
Evidence shows that a lower drink drive limit would contribute significantly to our overall aim of reducing deaths and serious injuries on Scotland's roads. Research by University College London in 2005 suggested that six lives could be saved in Scotland every year if this reduction were to take place.
Key Questions:
What are the advantages for Scotland in controlling all aspects of the law and justice system?
How can we ensure that the law and justice system is responsive to distinctive Scottish needs?
How could an independent Scotland build on our current law and justice system in the interests of a fair and equitable society?
Kenny MacAskill MSP
Cabinet Secretary for Justice
Scotland has a long and distinguished history of developing and managing our own legal system and institutions. This has led to a distinctive approach to legal issues which reflects Scotland's needs.
The Scottish Government has continued this trend when tackling a variety of issues, such as alcohol-fuelled crime, the use of Community Payback Orders which require offenders to repay communities for damage, and increasing the age at which children can be prosecuted in adult courts. We are also delivering record numbers of police officers in Scotland.
Even with a range of devolved responsiblities, there are a number of areas where we do not have the powers to respond to Scotland's needs. These are key issues such as human rights, drugs policy and firearms legislation.
That is why it is important to have a National Conversation to debate how an independent Scotland could build on our historic legal tradition, and ensure that our justice system and legal framework can best tackle the issues which affect Scotland and its people.
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