Restorative justice: policy and practice framework

11. Legislative context

11.1 Section 5 of the Victims and Witnesses (Scotland) Act 2014[vi] provides the following legislative framework for the role of Scottish Ministers in RJ:

(1) The Scottish Ministers may issue guidance about:

(a) the referral of a person who is or appears to be a victim in relation to an offence or alleged offence and a person who has or is alleged to have committed the offence to restorative justice services, and

(b) the provision of restorative justice services to those persons.

(2) Any person, or description of person, prescribed by the Scottish Ministers by order must have regard to any guidance issued by the Scottish Ministers under subsection (1).

(3) In this section, ‘restorative justice’ means any process in which persons such as are mentioned in subsection (1)(a) participate with a view to resolving any matter arising from the offence or alleged offence with the assistance of a person who is unconnected with either person or the offence or alleged offence.

(4) An order under subsection (2) is subject to the negative procedure.

11.2 Guidance for the Delivery of Restorative Justice in Scotland[vii] was published in October 2017, in accordance with Section 5 of the 2014 Act.

11.3 The Restorative Justice (Prescribed Person) (Scotland) Order 2021[viii], which came into force on 24 February 2021, prescribes persons who must have regard to any such guidance issued by the Scottish Ministers as follows:

• the Scottish Ministers for the purposes of their functions relating to prisons and young offender institutions and persons detained in them,
• Community Justice Scotland,
• a local authority,
• any person who provides victim support services or other support services for individuals using restorative justice services, and
• a person who provides restorative justice services.