Chamber and committees

I have a funny feeling that the cabinet secretary is going to agree with you.

Thank you very much. There is no cake, I see, but that is fine. [Laughter.]

I have learned a lot in this committee over the past three and a half years, and I am extremely grateful for the opportunity to work with you all. It just shows that we can forget party allegiances sometimes and work for the common good.

I cannot thank the committee without thanking the clerks, who, as we all know, run the show. Thank you very much.

I apologise for that procedural hiccup.

I heard what the cabinet secretary said about the lack of discretion in respect of the Crown Office. However, there have been approximately 350 deaths in prisons in Scotland over the past decade and in none of those cases were the families’ views a factor in whether there should be a fatal accident inquiry, because it is a statutory requirement.

Furthermore, in respect of the line of argument that the cabinet secretary put forward about the airing of sensitive information, my understanding is that a sheriff who presides over a fatal accident inquiry has mechanisms to put in place reporting restrictions in respect of any information that is deemed to be sensitive, so that it is not put in the public domain.

I understand the problem with amendment 41, because it does not differentiate between a tragic officer suicide, when misconduct has absolutely not been a factor, and cases in which misconduct might well have been a factor. It is a bit of a blunt instrument.

I wonder whether there might be a way of working with the Government to lodge an amendment whereby, if the Crown’s initial investigation of the circumstances found that there was the possibility of police misconduct, or if regulation issues were perhaps a factor in the death, that would trigger the requirement for a fatal accident inquiry. There has been a failure of the SPA and Police Scotland to look properly at the circumstances of deaths that we know about. That would be a way of plugging that gap and righting that wrong.

I understand the problem with amendment 65, because it talks about a mandatory FAI for all deaths and does not differentiate deaths in which misconduct issues might have been a contributing factor. I would be happy not to move my amendment if my concerns could be addressed through a change to either amendment 65 or amendment 41 and an acceptable version of what I have proposed could be found that would seek to respectfully and sensitively address what I believe is a big gap in the current system. I am keen to hear the cabinet secretary’s position.

One thing that I did not say, which the federation told me this morning, is that it supports legislation that ensures the integrity of its workforce. That is in its interests and in everybody’s interests, but the legislation has to be fair. The amendments bring about a whole new ability for the chief constable to use vetting to arbitrarily dismiss officers who are deemed not to have passed that vetting, but it is only by way of regulation after the event that that will be properly defined.

Given that we have had three to four months of taking evidence on the bill and discussing it, this is extremely last minute. No interested party—not least the Scottish Police Federation or the Association of Scottish Police Superintendents—has had an opportunity to contribute to this part of the legislation, which has been introduced by way of amendments that were lodged only a week ago by the Scottish Government. It is sensible that we press pause.

We might all fundamentally agree that vetting needs to be improved and that there needs to be a mechanism whereby, if something arose through vetting, the police should have the ability to dismiss someone, but it all seems a bit slapdash and slightly irresponsible to do so on the basis of amendments that are a week old and which none of us have had any meaningful way of looking into.

I am extremely concerned about these amendments. The bill was published on 6 June, and here we are, 12 weeks later, considering a load of amendments from the Scottish Government that fundamentally broaden the scope of the legislation.

These amendments were published only a week ago today, and the proposed changes are so broad that they have required the Government to change the introductory text of the bill. Based on the evidence that we have heard, these are not small, tinkering amendments.

This morning, I spoke with David Kennedy, the general secretary of the Scottish Police Federation, and he shares our concerns. He described the amendments as “deeply concerning and frankly dangerous”, and he believes that they

“risk the creation of a fundamentally unfair system”.

The amendments would allow the chief constable to dismiss an officer for failing vetting. On the face of it, that might sound reasonable, but there appears to be no definition of what that vetting would look like; that would be decided only by way of regulation after the legislation is passed.

The committee has not taken any evidence on these amendments, and there has been no consultation with any witnesses, including from the SPF. I know that the cabinet secretary said that the SPF would be consulted after the event, but there is no real requirement for its position to be heard. If we accepted the amendments, we would, therefore, in effect be giving the Government carte blanche to come up with a system that could be fundamentally unfair.

The SPF’s other concern, which I share, is that vetting regulations that could lead to whistleblowers being targeted could be introduced by way of these amendments. Police officers, as whistleblowers, could have legitimate points to raise, and a decision could be taken to weaponise the regulations against them. I have seen that happen in the past with police officers, some of whom have given evidence to this committee. They had done nothing wrong, but having attempted to draw attention to wrongdoing, they felt the full force of the police regulations being used against them.

I urge the cabinet secretary, therefore, to press pause on these amendments today, and to give the committee and interested parties, including the SPF, time to submit a formal response to them. That would be sensible and reasonable, given that we have had just a week in which to consider them.

If the cabinet secretary insists on pressing or moving the amendments today, I would urge all committee members to vote against them at this stage. That would allow us to revisit the proposals at stage 3 in a measured and sensible way.

Will the cabinet secretary take an intervention?

My colleague Sharon Dowey has asked me to point out that the Government supports three of her amendments in this group. In the earlier part of her speaking notes, she identified eight. I do not want to spoil any future revelations, but five of them are in the next group. I say that for the record, so that there is no confusion. Her three amendments in this group that are being supported by the Government are amendments 12, 13 and 14, and I am speaking to amendment 57, in my name.

Amendment 57 would give the power to the chief constable to dismiss an officer whose conduct is considered to amount to gross misconduct, even when there are on-going criminal proceedings against that officer. It is important that the chief constable is able to do so where it is irrefutable that the officer should be sacked—if they have acted in a way that is inarguably incompatible with continued employment.

As we all know, especially on this committee, criminal proceedings can move very slowly, and there is no reason why an individual should not be dismissed, as in most workplaces, while there are separate and parallel criminal proceedings that will play out in due course. It seems sensible to introduce such a provision, which would prevent the very low number of guilty police officers from exploiting the system by remaining on full pay for prolonged periods when the evidence against them would result in instant dismissal in any other circumstances.

Convener, I do not know that I had the opportunity to respond to the cabinet secretary’s points. I thought that I had attempted to do so—

I think that this is the second-last group. I do not want to correct the convener, but I saw the clerks getting quite animated.

Yes—you were just trying to get our hopes up.

The reason why we are here is that Dame Elish Angiolini—or Lady Elish Angiolini, as she is now known—produced a 488-page report, with 111 recommendations, that identified weaknesses in the police complaints and regulation system in Scotland. One of her fundamental asks was that the Police Investigations and Review Commissioner should be answerable and accountable to the Scottish Parliament and its committees and not to the Scottish ministers, as is currently the case. My party agrees with that recommendation and believes that it should be reflected in the bill.

From our various correspondence with the cabinet secretary, I understand that she does not support the recommendation on the basis that she believes—if I understand her correctly—that the PIRC can already be held to account through the Scottish ministers, who are ultimately accountable to the Parliament. However, in order to provide consistency with what Angiolini has called for, I think that we should make the situation quite clear by changing the dynamic so that the PIRC is directly answerable to the Parliament. That relates to amendment 66.

Amendment 67 attempts to do that in a slightly different way. As things stand—let me try to phrase this correctly—ministers have the option to require all PIRC reports to be laid before the Parliament. Amendment 67 would remove that discretion so that, rather than ministers having the option to choose whether a PIRC report was laid before the Parliament, they would be obligated to lay it before the Parliament. In many ways, that might achieve the same thing that would be achieved through amendment 66, but I am happy to hear the cabinet secretary’s take on both amendments in the group.

I move amendment 66.