The Independence White Paper

Scotland's Future

The Scottish Government's 650-page White paper on Independence was published on 26 November and can be downloaded here

SACC statement on the Scottish Government's plans for independence.

For reference, the parts of the White Paper that are of particular relevance to SACC are reproduced below.

Headings highlighted like this are ours (they do not appear in the White Paper); emphasis is otherwise roughly as in the White Paper.

Independence and the Law

p 338

Constitutional platform for independence

Existing constitutional arrangements in Scotland will provide thebasis for the transition to independent statehood, with additional powers transferred as soon as possible after the referendum,giving the Scottish Parliament the ability to declare independent statehood for Scotland in the name of the sovereign people of Scotland.

The key legislative steps towards independence will then betaken by the Scottish Parliament, following the initial transfer of responsibilities. As with the referendum, independence will be made in Scotland. Some parallel legislation, dealing with matters relating to the rest of the UK, will be taken forward at Westminster.

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Legislation during the transition period will put in place a constitutional platform for independence. It will:

  • bring Scotland fully into the European mainstream on the protection of human rights by giving the European Convention on Human Rights the same legal force for reserved matters as it already has for devolved matters

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  • provide for the "continuity of laws": all current laws, whether in currently devolved or reserved areas, will continue in force after independence day until they are specifically changed by the independent Scottish Parliament

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  • provide for the Supreme Court of Scotland
  • place on the Scottish Parliament a duty to establish a constitutional convention to prepare the written constitution

p 340 In addition, agreement will be sought on issues including:

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  • operational agreements for cross-border services (for example, for health treatment, for intelligence sharing,for mutual aid between police forces and health services)based on existing arrangements where appropriate

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p 557

Q and A

560. What will happen on the day of independence?

On the day Scotland becomes independent, the Scottish Parliament and Government will assume responsibility for matters, like the economy and welfare, that are currently decided at Westminster. The Scottish Government and Parliament will be able to use these powers to do more to improve the quality of life for people across Scotland.Scotland already has many of the institutions that a modern independent democratic state needs: a modern parliament elected by proportional representation, a government accountable to parliament, a civil service appointed on merit and supporting the elected government and an independent judiciary and legal system.

The difference brought by independence is that powers currently exercised in Scotland by the Westminster Parliament will be transferred to the Scottish Parliament.

561. What will Scotland’s laws be on the first day of independence?

Scotland already has an independent legal system supported by a fully functioning court system and a legislative parliament.On independence, the laws of Scotland will continue in all areas, except where they have been changed in preparation for independence. After that, it will be for the elected Parliament of Scotland to decide on changes to the law.

Human Rights - General Issues

p 350

Equality and human rights

The choices open to us

An independent Scotland will have at its heart the respect,protection and promotion of equality and human rights.This will be enshrined in a written constitution to bind the institutions of the state and protect individuals and communities from abuses of power.

As a modern independent state, Scotland will play a full role by living up to our international obligations on equality and human rights and framing these through the constitution, legislation and policy as a basis for protecting rights, and securing fairness and equality for our people. It has been common in modern democratic states for equality and human rights to be treated as distinct and different spheres of concern by national governments, international institutions and civil society.While we recognise this, we also see the right to equality and protection from discrimination as integral parts of human rights in a modern society, and human rights as a fundamental part ofa truly democratic state.

Scotland has a strong history in protecting the rights and freedoms of everyone living in our country and has used our limited powers to their maximum extent to promote a fair and more equal society. The European Convention on Human Rights is an intrinsic part of the Scotland Act 1998 and, since devolution, the promotion of equality has also framed the work of the Scottish Parliament, evident in the establishment of an Equal Opportunities Committee and across Scottish legislation.While Scotland’s current equality and human rights framework is strong, that framework’s future cannot be guaranteed undercurrent constitutional arrangements378.

Our priorities for action

Safeguarding equality and human rights in a written constitution

On independence, all the rights and protections which people currently have under existing equality and human rights legislation will continue. In addition, we will seek to secure equality and human rights for everyone in society by embedding them in a written constitution.

As well as allowing us to ensure that the rights in the European Convention on Human Rights are enshrined in a written constitution, independence gives Scotland the ability to consider whether other rights, such as those in the United Nations Convention on the Rights of the Child, should also be enshrined.The principles written into the constitution will form an integral part of the structure of the country and will shape the development of future Scottish policy and systems – including those areas Scotland will inherit under independence such as welfare, employment and taxation – to deliver greater equality and social justice. This could, for example, create new ways to help families strike the right balance between paid work and care for older or younger people and potentially encourage more women into the workforce.

Strengthening legislation, support and enforcement

From day one of an independent Scotland, equality and human rights legislation and infrastructure will continue to protect and promote equality and human rights for the benefit of Scotland’speople.

Following independence, full powers also offer Scotland scope to consider strengthening or extending equality and human rights legislation and to develop an enforcement and promotion infrastructure which considers the appropriate alignment ofequality and human rights. As a government we would develop any future changes in full consultation with the people of Scotland, including with the Third Sector, public authorities,businesses, trade unions and equality communities. Our approach would be designed to reflect internationally recognised principles which guarantee independence from government and provide the power and resources to operate effectively. Scotland has, and will continue to have, our own UN-accredited national human rights body.

Strengthening Scotland’s influence on the international stage

This Government believes that human rights and protection from discrimination should not be restricted to those fortunate enoughto live in Scotland or other progressive modern states.Scotland currently meets the requirements of a range of international equality and human rights treaties On independence, Scotland will sign up as an independent country to these treaties and strengthen our international voice to shape the legislation and frameworks that flow from them, contributingto the wider goals of promoting international stability and democracy in other world regions.

An independent Scotland, as a full member of the international community of nations, could lead by example by demonstrating our own commitment to best practice in the fields of equality and human rights. In doing so, Scotland will be building on the strong foundations of work already being undertaken in fields such as international development and climate justice.

Equality in public life

Scotland has made significant advances in increasing the diversity of representation in public life, but many groups – suchas women, disabled people and ethnic minorities – are still not participating fully in the decision making of our country. We are missing talent and perspectives across our institutions and businesses. Increased diversity is good for business and goodfor the quality of decision-making.

The Scottish Government’s ambition is that appointments for which we are responsible should broadly reflect the wider population. We will continue our work to improve representation for all groups, and maintain our focus on improving the gender balance of public boards within current legislation.

If in government in an independent Scotland we will ensurethat Scotland’s institutions have equality and diversity at the heart of their governance. We will expect public and private institutions to improve the diversity and gender balance of their governance. We will also consult on a target for women's representation on company and public boards and, if necessary,we will legislate as appropriate.

Asylum

p 289 An independent Scotland, as a modern democracy, will meet our international obligations and play a responsible role on the world stage. We will demonstrate our respect for international law, human rights and social justice in offering asylum to those seeking a place of refuge from persecution, war, natural disaster or other major crises. Scotland already plays its part in efforts to provide a home for refugees as part of the UK and willdo so as an independent country.

The asylum process in an independent Scotland must beunderpinned by an emphasis on robust, fair, socially-responsible and thorough decision-making, with clear adherence to human rights and equality principles and to the rule of law.

Our priorities for action

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p 271

An independent Scotland will have the opportunity for a new model of asylum services separate from immigration. We propose that a Scottish Asylum Agency should oversee asylum applications. The process will be both robust and humane, and we will continue Scotland’s present approach of promoting the integration of refugees and asylum seekers from the day they arrive, not just once leave to remain has been granted (as is the case in the rest of the UK). In an independent Scotland, we will close Dungavel, end the practice of dawn raids and inhumane treatment of those who have exercised their legitimate right to seek asylum. If a failed asylum seeker is a risk to the public,secure accommodation will be sought whilst steps are taken to remove them. If there is a need for forcible removals, these will be undertaken with respect for human rights. Independence will also afford the opportunity to address asylum seekers’ access to employment, education and accommodation.

p 493

Q and A

367. What will independence mean for asylum policy in Scotland?

As a nation playing a socially responsible role in the world, an independent Scotland will continue to provide a place of safety for those seeking asylum. Asylum is granted to those fleeing persecution or serious harm in their own country and in need of international protection.

Asylum is a separate issue from immigration. The current Scottish Government proposes that an independent Scotland will put in place an independent asylum agency. It will handle asylum applications from the initial submission, throughout the assessment process and make the decision on whether to gran trefugee status to an individual.

The opportunity of independence will also allow Scotland to adopt a new humane approach to asylum seekers and refugees in line with our values and commitment to upholding internationally recognised human rights.

The new powers Scotland will gain at independence around equal opportunities, including race equality and anti-discrimination will be important in supporting Scotland’s ambition to be a progressive, welcoming and inclusive state.

368. What makes asylum seekers different from other migrants that come to Scotland?

Migrants apply for visas to come to Scotland to work, study orto join family members here. They make a decision to move to Scotland and have to show that they have sufficient resources to support themselves and their family while they are here.Asylum seekers are fleeing persecution or serious harm in their own country. They often arrive in the country in which they claim asylum by chance and with very little forethought or preparation.Scotland will play a responsible role as a good global citizen,supporting vulnerable people fleeing persecution.

369. Will an independent Scotland attract more asylum seekers than the rest of the UK?

There is no reason why this would be the case. Scotland will play a responsible role as a good global citizen, supporting vulnerable people fleeing persecution.

There is no empirical evidence to suggest that the reception conditions provided for asylum seekers constitute a “pull factor”or an incentive to seek protection in a particular country.

370. Will failed asylum seekers be detained?

Some people will fail any asylum process and there need to be arrangements in place to deal with those people with fairness and compassion. There is therefore no need to detain people just because their claim has been unsuccessful and they are awaiting removal. Detention by default, along with the practice of dawn raids, would not form part of the current Scottish Government’s proposed approach to asylum.

Failed asylum seekers who represent a danger to the public need to be accommodated securely whilst steps are taken to remove them, but this should be addressed in other ways. Prison will be a legitimate alternative in some, though very few, cases– for example where a criminal offence has been committed.

371. Will failed asylum seekers be forcibly removed?

Our intention is to encourage voluntary return for failed asylum seekers wherever possible. However, we accept that there willbe a need for some forced removal. Such operations will be undertaken in a sensitive and compassionate manner. There will be an end to dawn raids and a commitment not to forcibly remove vulnerable asylum seekers, such as young children or heavily pregnant women.

Intelligence and Counter-Terrorism

p 264

Working with partners

The rest of the UK will be our closest neighbour and our most important friend and ally. There is no doubt that intelligence sharing will be in the best interests of the people of Scotland and of the rest of the UK. The Scottish and Westminster Governments will engage closely as equal and co-operative allies in tackling issues of joint interest such as terrorism and serious organised crime. It will be a strong relationship of sovereign equals.

Existing agencies already work closely together. For example, Scotland plays an active part in the UK Counter Terrorism Strategy and, given that responsibility for policing and justice is already devolved to the Scottish Parliament, there is extensive cross-border co-operation on security. The effectiveness of these arrangements was seen in the co-operation between Scottish police forces, the Security Service and the Metropolitan Police Service after the Glasgow Airport bombing. It will be in the mutual interests of Scotland and the rest of the UK to ensure that this cross-border co-operation continues following independence, supported by Police Scotland and a Scottishsecurity and intelligence agency.

Some commentators have questioned whether the UK would choose to share intelligence with Scotland. However, as the Westminster Government’s Scotland Analysis: Security paper of October 2013 made clear: "It is clearly in the UK's interests to be surrounded by secure and resilient neighbouring countries,including – in the event of a Yes vote – an independent Scottish state".

A new security and intelligence agency will have the appropriate security arrangements necessary to give assurance tointernational partners that it can receive and handle intelligence safely and securely. There is already significant experience and expertise within both the Scottish Government and Police Scotland in handling sensitive, classified information, and thenecessary procedures for doing so are well understood. The new agency will also liaise closely with international partnerson operational matters, building from the basis of existing relationships.

An independent Scotland will explore the benefits of developing closer relationships with the primary EU agencies already engaged in cyber security: the NATO Cooperative Cyber Defence Centre of Excellence; the European Network Information Security Agency; and the European Cyber Crime Centre.

Legislation, governance and oversight

Early legislation will set out the purpose, duties and powers of a Scottish security and intelligence agency and the controls that will exist on the use of these powers.

Under independence, Scottish citizens will enjoy written constitutional rights for the first time. Striking the right balance between maintaining the constitutional and human rights of our citizens and the need for national security will be vital. In order to protect the safety of others, some of the work undertaken by security and intelligence agencies means, by necessity,interference with the privacy of specific individuals. Such work can and does save lives, but it needs to be done in a proportionate and managed way.

There has been extensive public debate about surveillance and the collection of information, especially in relation to online communications. In an independent Scotland, legislation will set out clear arrangements for investigatory powers, building on –and updating where necessary – the Regulation of Investigatory Powers Act 2000 and the Regulation of Investigatory Powers(Scotland) Act 2000. Our planned legislation will ensure that law enforcement agencies have the powers that they need to dotheir job and keep Scotland safe, while also clarifying the limit of those powers and the extent of the controls over them.

The controls put in place will be wide-ranging and comprehensive. The planned legislation will bring democratic control of our national security to Scotland for the first time.Scottish Ministers will be accountable to the Scottish Parliament for what a Scottish security and intelligence agency does in their name. The Scottish Parliament and the Scottish equivalent of the relevant Commissioners290 will scrutinise and challenge the work of the agency, including its covert work. They will be given clear legislative powers to support their work, including the power to require documents to be provided and to require the senior management of the agency to give evidence. There will also be detailed budget scrutiny from the Auditor General for Scotland, and the top-level budget will be scrutinised by the Scottish Parliament as part of the Budget Bill.

This scrutiny will ensure that the agency is acting properly,legally, efficiently and effectively, in line with international principles for intelligence service oversight. These processes must take transparency as their starting point. But in so doing,they will appropriately and rigorously protect aspects of the agency's work that cannot be made public, and will respect the control principle.

p 488

Q and A

348. Will Scotland replicate the three UK Security and Intelligence Agencies (MI5, MI6 and GCHQ)?

No. Scotland will need significant independent security and intelligence capacity to ensure its security. Independence offers an opportunity to build a new model for such work, that is fit for the 21st century and provides a proportionate means of ensuring Scotland’s national security.

On independence, the Scottish Government will set up a single security and intelligence agency for Scotland. The purpose o fthe agency will be set out in legislation, and will include the requirement to work with partners to ensure Scotland’s national security. Setting up the new body will allow us to do things differently, unconstrained by historical structures and precedent.We do not propose to replicate the current UK security and intelligence agencies (the Security Service, or MI5; the Secret Intelligence Service, or MI6; and GCHQ), although Scotland will continue to work very closely with them to ensure the security of Scotland and the rest of the UK.

349. Will Scotland be able to protect itself against terrorist attacks?

Yes. Scotland will have the ability to protect our citizens as other independent countries do.

The primary responsibility of government is to ensure the security of its citizens and to protect them, their property and way of life against threats. An independent Scotland will have national security arrangements that reflect Scotland’s specific needs and values, recognising the risks and threats we face.It will be based on a full review of security requirements and on a regular assessment of threats.

350. Would an independent Scotland present an access route to the rest of the UK for crime and terrorism?

No. Scotland already plays an active part in the UK Counter Terrorism Strategy and, given that responsibility for policing and justice is already devolved to the Scottish Parliament, extensive cross-border co-operation on security is already a reality. The effectiveness of these arrangements was seen in the co-operation between Scottish police forces, the Security Service and the Metropolitan Police Service after the Glasgow Airport bombing. It will be in the mutual interests of Scotland and the rest of the UK to ensure that this cross-border co-operation continues following independence, supported by Police Scotland and a Scottish security and intelligence agency.Under our proposals, an independent Scotland will remain partof the Common Travel Area with the rest of the UK and Ireland.As part of this, Scotland will maintain robust visa and immigration controls which will contribute to securing the external border against serious organised crime and terrorism.The arrangements to combat those seeking to exploit Scotland’s ports are already delivered by Police Scotland.

351. How will an independent Scotland ensure it has the capacity and technology required to comprehensively protect Scottish interests at home and abroad?

An independent Scotland will have security arrangements that are proportionate, fit for purpose, and reflect a full strategic assessment of Scotland’s needs and the threats Scotland may face, in the same way as comparable nations. Scotland will have an independent security and intelligence agency which will work closely with Police Scotland and with the rest of the UK to share intelligence and co-ordinate responses to threats.

352. Will an independent Scotland benefit from shared intelligence from allies such as the rest of the UK or the USA?

It will be in the interests of the rest of UK and other partners to work closely with Scotland on security matters, including the sharing of intelligence.