Seòmar agus comataidhean

Issues in and around misconduct in public office are salient and of high interest. I have a high regard for the work of His Majesty’s chief inspector of constabulary in Scotland and I take very seriously any and all recommendations that he makes. I have been looking into matters further, as I indicated in our earlier discussion. I am afraid that I cannot support either amendment, and I hope that, when I explain why, members will see the common sense in that at this time.

As Mr Findlay said, amendment 60 would require the introduction of a new law of misconduct in public office,

“where the person in public office is a constable or police staff”,

and for that to be done within one year of the date of royal assent of the bill that we are discussing.

As I said, I am aware that His Majesty’s chief inspector of constabulary in Scotland, Craig Naylor, called for the establishment of a misconduct in public office offence for police officers and staff who abuse their position, and that he did so in his recent annual report. Mr Naylor noted that officers south of the border can be charged at common law with committing misconduct in public office and said that there is no such offence in Scotland.

There is no specific legislation in England; such offences are dealt with on the basis of case law in England and Wales. The common-law offence in Scotland of wilful neglect of duty by a public official covers some of the same ground as the misconduct in public office offence in England and Wales does.

The offence south of the border that Mr Naylor referred to is not police specific. It is widely considered to be ill-defined and has been subject to criticism by the UK Government, the Court of Appeal and legal academics.

In 2012, the Law Commission for England and Wales undertook a project that culminated in the conclusion that two new statutory offences were merited to replace the common-law offence. That report was published in late 2020, but the then UK Government took no action. I note that Mr Findlay is demanding that the Scottish Government legislate on this new offence within one year, including carrying out all the consultation and engagement that would need to take place on a sensitive area, when the previous UK Government did not do that in four years in relation to its laws.

I am pleased that some of the amendments in the group about the publishing and protection of the advisory and barred lists set out what the Scottish Government intended to do in regulations. I confirm to the committee that, as narrated by Ms Dowey, I support amendments 18, 20 and 22 to 24.

Amendment 17 sets out that the Scottish Police Authority, HMICS, Police Scotland and the Police Investigations and Review Commissioner are required to

“consult the advisory list and barred list before employing or otherwise appointing a person”.

I can only support that as long as the power to add to those lists is not removed by amendment 21. I oppose amendment 21 because it would remove the flexibility of being able to add further organisations to those lists as appropriate. Therefore, I urge members to vote against amendment 21 if it is moved and pressed, although I appreciate Ms Dowey’s early indication that she does not intend to do that.

I oppose amendment 16, which would do two things in the bill, rather than through a regulation-making power. First, it prohibits the SPA from publishing the advisory list. Secondly, it sets out that the SPA

“must take steps to ensure that information ... which is included in the advisory list is not made publicly available.”

The Scottish Government’s intention has never been to require the publication of the advisory list, and those in charge of the list would need to have the proper data protection measures in place to comply with current and future data protection law. I cannot support amendment 16 because it is not clear what steps the SPA would be required to take or what is meant by “publicly available”. Amendments 22 and 23, which I support, would prevent the publication of information on the advisory and barred lists and achieve the same aim in a more cohesive way. I urge the committee to reject amendment 16.

I also oppose amendments 19 and 59 and I urge the committee to reject them. The bill sets out automatic conditions for entry on the advisory list or the barred list. Allegations of gross misconduct warrant being included in the advisory list, and a finding of gross misconduct warrants being included in the barred list. As there is not a decision to place a person on the barred or advisory lists that can be reviewed, I oppose amendment 19, which provides for a right of review of a decision to place a person on one of the lists.

Where amendment 19 is even more problematic is in qualifying the right to a review by reference to the person’s engagement with disciplinary proceedings. Amendment 59 makes the same qualification in respect of disciplinary proceedings that

“have not concluded when the person ceases to be a constable”.

Both amendments would require legislation to set out a test as to what constitutes engagement with disciplinary proceedings, which would be extremely difficult to achieve without leaving the provision open to abuse. As the committee will note, the test is not set out in the amendments and therefore needs to be thought through. I urge members to oppose amendments 19 and 59.

I reiterate that I am more than happy to work with Katy Clark and Sharon Dowey in advance of stage 3.

On the concerns about the phrase “lesser obligation”, the code must be compliant with the Equality Act 2010. However, amendment 48, which seeks to add that legislation as a source for the code’s preparation, would mean that the code needed to only “have regard to” the 2010 act, which would impose a lesser obligation than is already implied. I am happy to continue to discuss matters with members.

As for Ms Dowey’s and Ms McNeill’s points on consultation, it is crucial that there is clarity for the chief constable when it comes to consulting individuals or bodies that are able to represent people who have had direct experience of the complaints process, for example. The issue is how that can be done in a way that taps into a breadth and depth of experience, such as that of victim support organisations and perhaps others, but does not place an unworkable condition on the chief constable to consult every individual who has ever had an experience or who has ever represented someone who has had a very difficult experience. I am positive that we can work our way through those issues.

The European code of police ethics covers, for example, the rights of suspects, of witnesses and of victims; it places wider obligations on policing bodies and covers a range of other matters. I would be happy to provide in writing further detail on the UN codes, the UN basic principles and the code of police ethics.

We will do everything that we can to build consensus, but sometimes we must stick to our principles with a view to making progress. If we were to step back from what HMICS has recommended and the progress that the committee is looking for, that would be a step backwards, as opposed to a step forward.

It was very remiss of me, Mr Findlay, not to address the issue that you raised around whistleblowers. I agree that whistleblowers must be carefully protected, but the way to do so is by the application of whistleblowing protections, which sit elsewhere, and not by diluting vetting requirements.

I am happy to discuss more of that going forward, prior to stage 3.

I appreciate that people have seen the amendments only for a week, but that is the nature of our parliamentary process. It will cause us all to have to work hard and be somewhat testing.

The only thing that I would add is that, in all sincerity, I will continue to engage with members and stakeholders at an early opportunity.

I am conscious, Ms Dowey, that I must ask to intervene on you to answer Mr Findlay’s question, which is a bit odd.

I understand the issues and the care that members have taken in this area. For me, the bottom line is that there are various views about the scope of fatal accident inquiries. As a constituency MSP, I have looked closely at the matter, not in relation to police officers but in respect of the complexities of deaths abroad. I have looked at the coroners’ system in England, and the differences there are not quite as stark in practice. Although the systems look a bit different on the surface, I think that neither system always delivers the outcomes that grieving families would wish for.

There are two issues. I do not want to sound clumsy or disrespectful, but there is no short route to changing the process of fatal accident inquiries through the back door or through another bill. That would be a less than complete or satisfactory way to address matters, because the area would require much more in-depth consultation and scrutiny.

Tragedies happen in many professions—people who work in the health service take their lives and I have certainly known a number of social work colleagues who have taken their lives. Suicide stretches far and wide and it will have touched everyone in this room in some shape or form. We could get into unforeseen difficulties through the very understandable desire to address the issue that is related to serving police constables, which might create less than satisfactory outcomes because we are not looking at it in the context of a wider review of fatal accident inquiries. I am cognisant that many other professions stand in the line of duty and that the mental health of those professionals also suffers. My view remains the same—the issue is much wider.

Irrespective of one’s views on the merits or otherwise of the current legislation, what is suggested is a much bigger piece of work than can be done by trying to rectify matters by making amendments to a specific bill. I say that with respect. I am very conscious that this matter cuts to the core—it cuts deep—for many families.

There are complicated questions in relation to application and scope, so I will probably require a bit of consultation with legal officials and will come back to you in writing on what I have not answered.

On the phrase “reasonable assertion”, the privilege against self-incrimination can be properly invoked only when the person is suspected of a criminal matter. It can be invoked only if warranted and not if the person is not actually suspected of a criminal matter.

We will follow that up.

The amendments in group 3 respond directly to the recommendation that was made by His Majesty’s Inspectorate of Constabulary in Scotland to ensure that there is a requirement for all constables and staff to obtain and maintain vetting, as well as to ensure the power to dismiss should they be unable to maintain vetting. The committee also recommended that and, during the stage 1 debate, I committed to lodge amendments on the issue.

The public rightly expect the police workforce to act with integrity and professionalism at all times. The amendments will ensure that all police constables and staff will have to go through a regime of on-going vetting that will continue throughout a person’s professional life, rather than ending at recruitment. Currently, only constables and staff in specific roles undertake regular revetting.

Under the amendments, the chief constable must develop the necessary elements for a robust regime, including vetting periodically and where there is reason to revet, dismissal and entry on to the barred list as appropriate. By requiring a statutory vetting code of practice for constables and police staff, and a new regulatory regime for constables in particular, we can be confident that Police Scotland will have an effective scheme that requires constables and police staff to maintain vetting clearance. The amendments clarify that, where clearance cannot be maintained, there is a route to dismissal.

I will take the amendments in turn. Amendment 43 introduces a new chapter on vetting into the Police and Fire Reform (Scotland) Act 2012, including proposed new section 36C, which sets out what the vetting code of practice “must” include and what it “may” include. The code must include provision for on-going vetting of staff periodically and with reason, and for dismissal to follow where appropriate. Although the duty to prepare the code lies with the chief constable, there is a duty to “involve” the SPA in the preparation of the code, and the SPA “must” assist the chief constable in that regard. The code may also set out additional detail about on-going vetting, which will apply to both staff and constables, to encourage a coherent overall picture for all who are involved in the policing of Scotland.

Proposed new section 36D of the 2012 act sets out how the code will be prepared, including that it must be fully consulted on with His Majesty’s Inspectorate of Constabulary in Scotland, staff associations, trade unions and minority staff networks before the code is published. Section 36D also requires the chief constable to review the code at least once every five years to ensure that it is current and up to date, and to revise it if necessary.

As the committee is aware, police staff are employees of the SPA, which is responsible for setting their terms. The chief constable has the power to dismiss staff under section 21(3) of the 2012 act, and dismissal for a failure of contractual vetting would be a potentially fair reason for dismissal in terms of general employment law. However, police staff are under the ultimate direction and control of the chief constable. With such a code of practice, she would be able to ensure that staff will undergo vetting periodically, can be revetted if a reason to do so arises, and can be dismissed for a failure of vetting where appropriate.

Amendment 44 introduces a regulation-making power, via a new section 50A of the 2012 act, to make similar provisions for constables as the code will make for staff. The Scottish ministers must lay regulations that provide for the vetting of police constables periodically and if a reason for a review is identified. Those regulations must also provide for the dismissal and demotion of constables where appropriate. A regulation-making power is required because police constables are office-holders, not employees, and their terms and conditions are set out in regulations.

Following the dismissal of a constable for being unable to maintain vetting, it is important that they are unable to gain employment in policing across Great Britain. Amendments 45 and 46 enable a police constable who is dismissed following a failure to maintain vetting to be added to the barred list. That enables other policing bodies to be made aware of the risk that is associated with the individual. The amendments make the treatment of a dismissal for vetting under the barred list equivalent to that of a dismissal for misconduct. That recognises that there is an equivalent need for others to be alerted to the risk that is posed by those who cannot maintain vetting clearance.

We expect legislation to be brought forward that will place police officers in England and Wales on the barred list there if they cannot maintain vetting, so amendments 45 and 46 will provide a consistent approach to vetting across Great Britain. I hope that members will agree that those amendments are pragmatic and right in principle, and I urge members to vote for them.

Amendment 47 updates the long title of the bill to ensure that it encompasses the new provisions for vetting, the need for which is reflective of the significance of the provision for a new vetting regime. The amendment does not affect the short title of the bill, which remains the Police (Ethics, Conduct and Scrutiny) (Scotland) Bill.

The amendments are an important addition to the bill and will provide the chief constable with the ability to have a robust vetting regime that will examine the on-going suitability of serving constables and police staff and dismiss those who might pose a risk to the police service. I hope that the committee will agree with and support the amendments.

I move amendment 43.

I am quite confident that I will be able to agree, at least in part, with both Russell Findlay and Rona Mackay.

As I hope members are aware, I am very keen to see body-worn cameras rolled out to help to ensure that justice is served humanely and effectively for those who interact with the police and others. That is why I ensured that there was a budget settlement this year of £1.55 billion, which includes covering the costs of the roll-out of body-worn cameras. I am aware of the updates that the chief constable has given to the committee and the Scottish Police Authority on the roll-out. I think that we all agree on the importance of body-worn cameras and what they can help to deliver.

I will, of course, want to see an evidence-based assessment of the impact of body-worn cameras; I think that that is reasonable. However, placing such a requirement in the bill is not, in my view, how that should be done. It is for Police Scotland and the inspectorate body, HMICS, to assess and audit the effectiveness of body-worn cameras when the roll-out is complete. I will ask Police Scotland to report on the effectiveness of using body-worn cameras and discuss with HMICS what plans it has to provide additional scrutiny and independent oversight. I will write to Police Scotland and HMICS on the topic after the evidence session, and I urge the committee to oppose the amendments.