Seòmar agus comataidhean

I do not have anything to add to or subtract from what I have said.

Amendment 5 agreed to.

Amendment 6 not moved.

Amendments 7 and 8 moved—[Angela Constance]—and agreed to.

Amendment 9 not moved.

Amendments 10 and 11 moved—[Angela Constance]—and agreed to.

Section 3, as amended, agreed to.

After section 3

My amendments 34, 35, 37 and 38 respond directly to the committee’s recommendation that the bill provides for a presumption that the PIRC will publish responses that are received from Police Scotland or the SPA unless there are exceptional circumstances. Section 11 allows the PIRC to carry out a complaints handling review in the absence of a request by the complainer or appropriate authority if that is in the public interest, and the provisions give the PIRC discretion to publish the responses from Police Scotland or the SPA to recommendations made by the PIRC as soon as is reasonably practicable.

Amendments 34 and 35 will provide greater transparency by replacing the PIRC’s discretion to publish responses with a duty to publish, while ensuring that no information that would identify an individual—other than the chief constable—or prejudice an on-going criminal investigation will be published and allowing the PIRC to withhold the whole or part of a response if it considers that it is in the public interest not to disclose it. There will therefore be a presumption that the PIRC will publish responses.

Similar provisions that give the PIRC discretion to publish responses from the appropriate authorities are contained in section 12, which will allow the PIRC in certain circumstances to take over consideration of or call in a complaint that is being dealt with by the chief constable or the SPA. For consistency and clarity, amendments 37 and 38 also provide for a presumption that the PIRC will publish responses that are received from the appropriate authorities to recommendations made by the PIRC in relation to the call-in of complaints. I ask members to vote for all my amendments in the group.

I turn to Sharon Dowey’s amendment 33. I welcome and support the proposed new provision to place a duty on the PIRC to notify the relevant complainer of the decision to carry out a complaints handling review. It is reasonable that the complainer is alerted to any activity relating to their complaint. That will ensure a greater degree of transparency and reassurance in the complaints handling review process.

However, I cannot support Ms Dowey’s amendment 36, which would place a requirement on persons to provide documentation to the commissioner when requested to assist the investigation of a complaint that the PIRC has called in. I am not aware that that matter has been raised by the committee previously, and the amendment is not necessary. Section 44 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 already requires the chief constable and the SPA to provide information, documents and evidence that are requested by the PIRC and that are relevant to the PIRC’s functions. Amendment 36 also begs many questions, including with regard to the identity of the persons, what they are required to do and the consequences of not doing it. For all those reasons, I ask the committee to oppose amendment 36.

I also cannot support Katy Clark’s amendments 63 and 64, which would require responses by the SPA or the chief constable following a complaints handling review under section 11 or the call-in of a complaint under section 12 to include an equality impact assessment. An equality impact assessment requires a detailed examination of the impact on all nine of the protected characteristics under the Equality Act 2010 and therefore requires substantial time and effort. To require an equality impact assessment for every response to the 200 or so complaints handling reviews per year and any call-in of a complaint would be disproportionate, given that the SPA and the chief constable are already under a duty to adhere to existing laws including the Equality Act 2010. The approach that is set out in the amendments would cause much more time to be involved in complaints handling reviews and would have significant resourcing implications. The PIRC also thinks that an equality impact assessment is not necessary or appropriate all the time.

I know that Mr Findlay has long-standing views on the matter. As we have heard, amendments 66 and 67 seek to amend the PIRC’s reporting duty under the Police, Public Order and Criminal Justice (Scotland) Act 2006 so that reports go to the Scottish Parliament instead of the Scottish ministers. As members will recall, that specific issue was not raised in the committee’s stage 1 report, but I acknowledge that Mr Findlay has articulated his views on the matter on more than one occasion.

The Scottish ministers appoint the PIRC and, due to sponsorship and funding arrangements, it is for them, rather than the Scottish Parliament, to hold the PIRC to account. It is ministers who have the ability to consider the PIRC’s reports. Furthermore, the Scottish ministers’ reporting duty is just one of a number of established ways in which public bodies hold the PIRC to account. Members will know that the Lord Advocate has a role to play in respect of deaths in custody and allegations of criminal matters. The Scottish Parliament has a role to play, first through the Scottish ministers, who are ultimately accountable for the activities of the PIRC and their use of resources, and additionally in that the committee is able to call the PIRC to give evidence. There is also a role for the director of safer communities in the Scottish Government, who is responsible for the continuous assessment and appraisal of the commissioner’s performance, and the Auditor General for Scotland has a role to play in relation to financial matters.

Amendment 67 would replace the discretion that the Scottish ministers currently have to lay and publish reports by the PIRC with a requirement to lay and publish every report that is submitted by the PIRC under section 43(5) of the Police, Public Order and Criminal Justice (Scotland) Act 2006 in every case. Making that a requirement would remove the flexibility to deal with exceptions and to safeguard against the possibility of sensitive information being published. It is important that the Scottish ministers retain that discretion, as the new powers that are set out in the bill may result in changes to the content of future reports.

The public-facing reports that the PIRC has submitted to the Scottish ministers to date are already publicly available through publication on the PIRC’s website, so any person or body, including members of the Criminal Justice Committee and other MSPs, can review those reports if they choose to do so.

I say to the committee by way of general information that, in my formal response to the committee’s stage 1 findings, I set out the issues regarding correspondence between my predecessor Keith Brown, when he was the Cabinet Secretary for Justice and Veterans, and the Presiding Officer in and around governance issues. Those matters were narrated to the committee at that point.

I ask the committee to oppose amendments 66 and 67.

No, thank you. I think that I have done my winding up.

Amendment 1 agreed to.

Amendment 48 not moved.

Amendment 2 moved—[Angela Constance]—and agreed to.

Amendment 49 not moved.

Amendment 3 moved—[Angela Constance]—and agreed to.

Amendment 4 not moved.

Section 2, as amended, agreed to.

After section 2

Amendment 50 not moved.

Section 3—Duty of candour

I appreciate that.

The short answer is that, as members will know, vetting currently happens. The HMICS assurance review spoke highly of the progress that has been made on vetting and said that it is of a high quality. However, the provisions in the regulations are missing the power to dismiss. If we want to, as I believe the committee does, empower the chief constable to have that power to dismiss, that is what we must try to address.

No. The purpose of stage 2 is to make progress prior to stage 3. Given the breadth and depth of the work, I think that leaving it all to stage 3 would be somewhat foolhardy and not common sense.

I am not trying to be awkward or disrespectful. I am trying to acknowledge the frustrations. Officials have engaged with all the parties. I accept that there are always differences of opinion. We are in a process between stage 2 and stage 3. I am trying to make two points, the first of which is that I do not think that it is wise to leave all this to stage 3. In response to the committee, I gave an undertaking in good faith and made a commitment to the Parliament. If the committee, which has followed the bill in great detail, is dissatisfied with this amendment at stage 2, I can only imagine that the Parliament would be less than satisfied at this all coming forward at stage 3. I am not disputing that there will be work for us all to continue to pursue and engage in. However, His Majesty’s Inspectorate of Constabulary in Scotland did the work and made a recommendation, which is, ultimately, what I am responding to.

The committee’s stage 1 report highlighted the proposal from HMICS for the PIRC to have the power to refer particular matters to HMICS in this area. I believe that Sharon Dowey’s amendment 39 might assist in that by adding a specific duty on the PIRC to consult HMICS, which will provide a solid foundation to establish roles and working relations in relation to the PIRC’s new role of carrying out reviews of practices or policies of the Scottish Police Authority, the chief constable or Police Scotland. The amendment will also allow an opportunity for both parties to consider who is most appropriate to carry out such a review. I am therefore supportive of amendment 39.

However, I am sorry to say that I cannot support Ms Dowey’s amendment 40, which would add a requirement for the PIRC to assist HMICS with any work that is related to such a review. The amendment is unnecessary as there is existing legislation that requires the PIRC and HMICS to collaborate. Section 46 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 already provides an information-sharing gateway to allow the PIRC to pass information to HMICS, should that be necessary to allow HMICS to carry out its work. Furthermore, under section 85 of the 2012 act, the PIRC and HMICS have a duty to co-operate and co-ordinate activity with each other to improve how they carry out their functions and to work together to prevent any unnecessary duplication, and a memorandum of understanding is in place to help to bring that into effect.

I am informed that the PIRC is not supportive of amendment 40, for the aforementioned reasons. I therefore urge the committee to oppose amendment 40.

I will come on to talk about some of the broader reasons and the broader landscape in a way that I hope will be helpful.

I am aware that the new UK Government is considering a new offence, which will apply to all public officials. Members might wish to note that the Law Commission’s recommendations include several categories in the list of public office holders, which go well beyond policing roles.

I will give a bit more detail. The UK Government is considering that the offence would apply not just to the police. It would include, but not be limited to, Crown servants, including ministers of the Crown; any person employed in the civil service of the Crown; any constable and any other person employed for the purposes of any police force; elected officials and their employees; and members of Parliament. The question that we could be challenged with is why we are starting with the police and not the politicians. Broad consideration is therefore being given to the matter at the UK level, and the Scottish Government will engage with that as appropriate.

If the offence was to be created under the bill, it would apply to constables only, which would result in piecemeal legal reform and would single the police out as the only public office holders that the provision should apply to, when a principled view would suggest that other holders of public office should be equally liable for misconduct. As I said, my officials will work with UK Government officials on the topic.

Amendment 61 would require the Scottish ministers to report on misconduct in public office within one year of royal assent, and particularly on whether there should be a statutory offence of misconduct in public office for the police and, if so, what steps would be taken to introduce it. In my view, that is not the way to make the legislation, because it could, in theory, cut across a whole range of public offices. The police might also rightly raise the question of why we were singling them out.

In all fairness, there is much to be done in this area, following a series of inquiries and reviews. However, the amendments are using a specific bill about the police to seek to enact piecemeal and knee-jerk change, rather than having a proper consultation and consideration and taking a mature and co-ordinated approach to law reform in this area for all public office holders. I therefore urge members to oppose Mr Findlay’s amendments 60 and 61, but I appreciate his interest in the area, because I think that it is important for standards in public life.

Sometimes amendments are small and sometimes they are large, but, if it is of any interest, it will be the same as it is in England and Wales.