Lock them up? Not in Sturgeon’s Scotland

One of the great disappointments of devolution has been the failure of the Scottish parliament to pursue novel ways of fixing political problems. Whether on educational attainment, health indicators, waiting times or economic development, it’s difficult to argue that Scotland under devolution is fundamentally different from how it would have looked had the country voted no in 1997.

But one area where that observation is becoming harder to sustain is criminal justice: the SNP has grown in confidence in recent years and a more liberal — or at least a more nuanced — policy is taking shape. The SNP’s justice secretary Keith Brown set out the latest iteration of this policy in a speech to Holyrood on Tuesday, accompanied by a new strategy document which details a move away from over-reliance on prison sentences.

There were plenty of buzzwords (‘trauma-informed’, ‘person-centred services’) and some eyebrow-raising idealism (Brown said he wanted Scottish communities to be ‘free from inequality and hate’) but there is a hard-headed realism to this vision: in those cases where prison doesn’t work, a different tack will have to be taken.

The Scottish government’s different tack is ‘for a just, safe resilient Scotland’ that prioritises women and children, victims’ rights and a shift from custodial sentences to ‘justice in the community’. The strategy is geared towards five aims: first, creating ‘a society in which people feel, and are, safer in their communities’; second, tackling ‘the underlying causes of crime’ and providing support so everyone can ‘live full and healthy lives’; third, running an ‘effective, modern person-centred’ criminal justice system with ‘trauma-informed approaches’ that victims and accused can have faith in; fourth, championing rehabilitation and cutting recidivism and revictimisation, while ‘us(ing) custody only where there is no alternative’; and fifth, responding to the continuing effects of Covid-19.

While Brown didn’t put it in cost-benefit terms, the economic rationale is strong too. This year’s Scottish budget earmarks £476.4 million for prisons alone. Squandering half a billion on prisons every year in a country with a population under six million is ludicrous and self-harming. Finland, with roughly the same population, spends half as much.

The content both of Brown’s speech and of the document were moderate, thoughtful and balanced, and yet utterly unthinkable at Westminster. Priti Patel is unlikely to declare any time soon that ‘people should only be held in custody where they present a risk of serious harm’ or that they must ‘be supported to remain in our communities, minimising stigma and prejudice’ or helped ‘to integrate into our communities, including having a safe place to live and options for employment’. Yvette Cooper, if she is sentenced to time at the Home Office after the next election, might nudge the line a little leftwards here and there but a Labour home secretary cannot open herself to accusations of being soft on crime.

Why is Holyrood able to be bold while Westminster fearfully props up a failed, more-time-more-crime system? Certainly, ministers in Edinburgh enjoy the cushion of crime rates that have more than halved in the last 30 years. While England and Wales have a crime rate of 77.6 per 1,000, the figure plummets to just 45.1 in Scotland, consistently the safest jurisdiction in the UK for a decade now.

A less noble factor probably plays a role: Scottish politics is dysfunctional. The ruling SNP operates more like a voting bloc than a parliamentary party (dissent, whip-breaking and conscience-voting are almost unheard of); Holyrood committee chairs are appointed by party whips, not MSPs; civil society organisations, where they are not directly funded by ministers, are astonishingly reluctant to criticise the (Scottish) government; and the SNP faces a drastically smaller, less populated and less resourced news media than the Tories at Westminster.

The hard truth is that the same political dysfunction that allowed patently bad, authoritarian legislation like the Hate Crime Act to be pushed through (albeit after some amendments) also allows more daring, liberal legislation to make its way onto the statute books. Flawed democracy is generally bad for liberalism, but not always. Hard truths cut both ways, mind you. While Scottish liberals celebrate strides forward on criminal justice, they prefer not to dwell on the good intentions that threaten to undo all this progress.

Legislation like the Hate Crime Act, which adds more (and contentious) protected characteristics and creates an expansive new offence of ‘stirring up hatred’, will inevitably increase the number of people coming into contact with the criminal justice system. It may well increase the number of custodial sentences handed down. Whatever their individual merits, every new offence created, and every call for more prosecutions in existing offences, will frustrate work towards reducing criminalisation and moving away from a carceral justice system.

That’s not a reason to stop making law but it is a reason to stop making so much law and so much bad law. Scottish justice policy is enlightened but not as enlightened as it thinks it is.