It has become established practice for Scottish Parliament committees at the end of a session to prepare ‘legacy papers‘, reflecting on the work they have undertaken during that session, and highlighting any particular areas of work that are outstanding which a successor committee may wish to pursue.
This document is the Legacy Report of the Justice Sub-Committee on Policing to any committee or sub-committee formed in session 6 with the responsibility of policing within its remit.
In informing its work, the Sub-Committee thanks the organisations and individuals who provided written evidence to us to help inform our views (see Annex A).
The Police and Fire Reform (Scotland) Act 2012, which came into effect on 1 April 2013, replaced the eight territorial police forces in Scotland with one national force, Police Service of Scotland (herein after referred to as Police Scotland), and also replaced the local police authorities and joint police boards with one national oversight body, the Scottish Police Authority (SPA). Also abolished under the Act were the Scottish Police Services Authority and the Scottish Crime and Drug Enforcement Agency.
The 2012 Act requires the Parliament to make arrangements for keeping under review the operation of the Act and to publish reports thereon. To fulfil this requirement and, in recognition of the Justice Committee’s heavy legislative workload, the Parliament established the Justice Sub-Committee on Policing on 5 October 2016 with the remit to consider and report on the operation of the Act as it relates to policing. As with other subject committees, the Sub-Committee was set up to last for the duration of the parliamentary session. This is similar to the decision taken at the start of session 4.
The creation of a Policing Sub-Committee was not intended to preclude the Justice Committee from examining any policing matter and, in practice, it has not done so. The Sub-Committee has examined the policing budget and reported to the Justice Committee as part of the latter’s overall scrutiny of the Scottish Government’s draft budget. The Justice Committee has considered subordinate legislation and public petitions on policing issues. It has also taken the lead on examining wider policing issues, such as post-legislative scrutiny of the Police and Fire Reform (Scotland) Act 2012, and any policing issues that were outside the Sub-Committee’s remit.
In this Legacy Report, the Sub-Committee makes a number of observations arising from our work. This Report also suggests areas of work that any successor may wish to take forward.
In session 4, the first Sub-Committee on Policing was established on 13 March 2013. It focussed on how particular aspects of policing were working under the new arrangements. In its legacy report it stated that “Given the Justice Committee’s workload, it is clear that police reform would not have been subject to the level of scrutiny required in these early years had the Sub-Committee on Policing not been created”.
The Legacy Report from Session 4 also indicated that the Sub-Committee had worked well in ensuring that the many issues of concern which have arisen relating to policing have been examined in depth. In particular, that it had effectively filled a void where the Scottish Police Authority (SPA) had failed to provide the public forum for debate of Police Scotland’s decisions which has been required in these formative years. It concluded that “It is essential that such a public forum for debate remains, yet it is unclear whether the SPA is yet ready to take on this role”. It was against this backdrop that the session 5 Justice Committee agreed to establish a Sub-Committee for this session.
In the first few years of the parliamentary session, the Sub-Committee typically met on a fortnightly basis, latterly moving to meetings every three weeks. In all, the Sub-Committee met 64 times in the parliamentary session.
The Sub-Committee’s scrutiny has led to changes to policies and ways of working. Police Scotland and the SPA have adopted a human rights-based approach to policing, which is welcome and helps to achieve the stated aim of policing by consent. This is key to ensuring the legitimacy of the police service and the confidence of the public. We will return to some of these issues later in this report.
During this parliamentary session, the Sub-Committee heard from a range of witnesses. Due to our narrow remit, we have mainly relied heavily on a small pool of individuals (such as the chair of the SPA, the Chief Constable and other senior police officers and staff etc.) and we are grateful that they regularly made themselves available to assist us with our scrutiny.
We also received oral and written evidence from other policing bodies (such as the staff associations and trade unions), as well as from wider society. We are grateful to all those who took the time to provide evidence to assist our scrutiny.
The Sub-Committee’s broad approach to this issue has been to gather evidence on how the policing arrangements established under the Police and Fire Reform (Scotland) Act 2012 are working in practice and to explore some of the challenges that remain.
Of particular interest to the Sub-Committee in this area of out work has been the functioning of the SPA, its relationship with Police Scotland and the Scottish Government and the oversight and governance arrangements that have been put in place for scrutiny of policing.
During this session, there have been a significant number of changes to the senior personnel at the SPA and a fair degree of instability. Each SPA chair has, within the framework of the legislation setting up the SPA, taken a somewhat different interpretation of their role.
During the parliamentary session there were further changes to senior positions within both Police Scotland and the SPA. Two Chairs of the SPA, Andrew Flanagan and Susan Deacon, tendered their resignation. The Chief Executive, John Foley, took early retirement and his replacement, Hugh Grover, subsequently tendered his resignation. The Chief Constable, Phil Gormley, also resigned with immediate effect. At the time of writing this Report, a new Chair of the SPA, Martyn Evans, has been in post for about a month.
The views of the Justice Committee and Sub-Committee have been set out in the various reports issued on this matter. It is our view, at the end of this session, that the situation with the SPA is improving and a new Committee or Sub-Committee may wish to keep the work of the SPA and the oversight and governance arrangements under review.
It is worth noting that HMICS recommended recently that the SPA requires to set out in detail how it will exercise its duty to hold the Chief Constable to account through its system of governance. This recommendation remains outstanding.
It is also worth being aware that Audit Scotland published an annual audit of the SPA each year in session 5. These reports are prepared by the Auditor General if any specific concerns or issues have been raised in the audit of one of the public bodies for which he is responsible. The most recent report indicates that the SPA has improved how it operates, but stated that policing in Scotland is not financially sustainable. In the 2021-22 budget, the Scottish Government provided additional capital funding to remove the deficit in the policing budget and put it on a more sustainable footing.
One other area for a new Committee or Sub-Committee to consider is the recurring issue of the format of scrutiny by the SPA. When considering issues, the SPA still seems to limit its formal evidence-taking to Police Scotland and not a wider set of organisations.
The Sub-Committee has raised this as a concern this session but has not seen any change in practice. This approach runs the risk of the SPA only considering the views of Police Scotland when, for example, looking at the benefits of new technologies, and not ensuring the concerns of other groups are heard and then making decisions that then have to be revisited.
There is also, in our view, still an issue with scrutiny of issues at a local level in Scotland. This is a view shared by HMICS which told us that “local scrutiny by elected councillors, council officers and others sitting on local committees, continues to be important, yet the frequency of meetings and quality of scrutiny are varied across the country”.
The other main scrutiny topics explored by the Sub-Committee this session have included:
Policing during the coronavirus pandemic;
Oversight of Police Scotland and governance arrangements for policing;
The introduction of new and emerging technologies and the implications of their use, including digital device triage devices (cyber kiosks), body worn video cameras and drones;
The impact of Brexit on policing;
The system for complaints against the police in Scotland;
Police Scotland’s role in the immigration process;
Training and development in Police Scotland;
The challenges ahead for the police in 2021 and beyond, including the policing of the COP26 and Euros;
Use of firearms by police officers, including the licensing system; and,
The use of Stop and Search in Scotland.
An unexpected challenge for all of those involved in policing during 2020 to date is that of the coronavirus pandemic. The police service has adapted quickly to the new situation and, in our view, has had a consistent and appropriate response. The SPA and Police Scotland worked well to provide reassurance to the general public. The establishment of the Independent Assessment Group (IAG) to provide oversight of Police Scotland’s use of new and emergency powers was a welcome development. The establishment of the IAG was at the request of the Chief Constable, who also chose the Chair, rather than at the behest of the SPA.
The Sub-Committee believes that, in the main, Police Scotland’s policing during the pandemic has been a success, helped by the leadership shown by the Chief Constable and the work of all the police officers and staff involved. It has shown the service can adapt quickly and effectively.
The Sub-Committee welcomes the establishment of the IAG and its oversight of the use of police powers. We also welcome its attempts at hearing from a wide range of views to inform their work, although access to data continues to be an issue.
The Committee understands the IAG may be a unique model of oversight which is attracting interest from other jurisdictions around the world.
The Sub-Committee is concerned, however, about the impact of the pandemic on officers and staff and encourages any successor to keep Police Scotland’s efforts at safeguarding the wellbeing of its staff under review.
The Sub-Committee expects this to be an on-going issue for the Police Service to manage. Our successor may also want to see how the previously proposed plans to reduce police officer numbers and eliminate the deficit and achieve financial sustainability can might be achieved, or indeed reviewed, especially if the pandemic continues.
A key theme of our work during this session has been the introduction of new technologies for policing, sometimes with little or no public consultation or risk assessments to ensure they comply with human rights and data protection legislation. This lack of due diligence and effective scrutiny has, in our view, led to some reputational damage for Police Scotland and the SPA. The Sub-Committee sometimes became aware of these issues only through media reports and therefore undertook scrutiny of the processes followed for the introduction of a number of new technologies to policing. The technologies included including digital device triage devices (cyber kiosks), body worn video cameras and drones.
In response to the Sub-Committee’s inquiry, Police Scotland established an External Reference Group to consider whether the use of cyber kiosks met legal, human rights and data protection requirements. The External Reference Group includes civil society groups like Open Rights Group, independent regulators, human rights institutions, and solicitors.
As a consequence of the Sub-Committee’s work, the deployment of cyber kiosks was put on hold until the External Reference Group had concluded their work. Following this, Police Scotland committed to establish Ethics Advisory Panels, which has been welcomed by stakeholders. Similarly, the decision by the Cabinet Secretary for Justice to establish an Independent Advisory Group to scope the possible legal and ethical issues arising from emerging technological developments has also been welcomed.
Of particular concern in the Sub-Committee’s findings is that the ethics of introducing new technologies to policing, or additional functionalities to existing technologies, where there is a risk of collateral intrusion were not seen as a major issue for the SPA. Particularly concerning is the SPA’s policy and a seeming lack of governance for Police Scotland purchases which do not exceed its delegated authority of £500,000.
The Sub-Committee’s inquiry led to the delayed deployment of the kiosks. We found that the SPA had not asked the most basic of questions. While the cyber kiosks were eventually rolled out in early 2020, it was done with more information available in the public domain, greater scrutiny and due diligence, and improved internal governance. This work would not have occurred without the intervention of the Justice Sub-Committee on Policing and others, such as the Open Rights Group have stated this was the case.
Another technology considered by the Sub-Committee is that of facial recognition. In its Policing 2026 document, the use of this technology was described as an “ambition” and Police Scotland has confirmed its use was not planned at this time.
At the time of the Sub-Committee’s inquiry, facial recognition technology had been used by South Wales Police and the Metropolitan Police Service. During the inquiry its use by South Wales Police was subject to a legal challenge and some media reports commented on concerns about the high levels of inaccuracy of the technology and its impact on human rights.
The SPA and Police Scotland did carry out an Equality and Human Rights Impact Assessment which concluded that the use of this technology by police officers would be positive and there were “no direct or indirect adverse or disproportionate impact on protected groups in the wider community or in respect of partnerships”.
The Sub-Committee did not agree with this assessment and found that the impact assessments carried out were insufficient, as live facial recognition technology lacked necessary safeguards, had a lack of accuracy, and was discriminatory. For these reasons the Sub-Committee concluded that facial recognition technology in its current form is not fit for use by Police Scotland.
Police Scotland has now committed to not introducing facial recognition technology without a further consultation and addressing the issue regarding the lack of a legal framework.
It is our view that the introduction of new and emerging technologies for use in policing is an issue worthy of continued scrutiny by a new Committee or Sub-Committee. Police Scotland must be able to use all appropriate tools available to detect and solve crimes. However, these technologies can infringe human and privacy rights.
It is essential, therefore, that they are subject to robust and transparent scrutiny and public consultation to inform any decision to purchase. Given the discriminatory nature of facial recognition technology for those from BAME communities, the Sub-Committee has a particular concern that its introduction has not been discounted completely by Police Scotland.
The Sub-Committee has just concluded a short inquiry into Police Scotland’s plans to expand its use of drones and body worn video cameras.
The inquiry was undertaken in response to media reports that Police Scotland has been deploying drones for operational policing matters beyond searching for missing people in rural and remote areas (which had been the stated purpose). This came to light when the SPA considered an evaluation report of Police Scotland’s first year of using three drones.
Police Scotland’s Data Protection Impact Assessment refers to the use of drones for policing purposes which significantly exceeds the limited scope agreed by the Scottish Police Authority (SPA) and Police Scotland, which focuses on searching for missing people in remote areas. It also goes beyond those referred to in Police Scotland’s recent evaluation report. It indicates that drones are to be used for “large scale disorder outside football stadium involving 100s of people. Imagery used to identify those involved and subsequent criminal proceedings”. It also refers to the use of drones at other sporting events, festivals, “supporting major policing operations such as demonstrations”, and for the detection of criminal offences.
In addition to the above, we found that prior to the purchase of the drones there was a lack of governance by the SPA, little financial scrutiny, and no impact assessments or consultation with external stakeholders undertaken.
During the inquiry, it came to light that Police Scotland has seven drones, and not the three that the SPA and Police Scotland had previously indicated. There were also media reports that the drones were to be trialled before use.
The SPA had been unaware that Police Scotland had gone beyond the agreed scope of use and had used the drones in urban areas, and for other purposes including filming young people at Troon beach who they suspected may become involved in anti-social behaviour.
Safety issues were also identified with the drones purchased, as they could not fly in inclement weather, only in light rain, without risk of falling from the sky.
The SPA’s lack of scrutiny during the evaluation period and Police Scotland’s use of the drones far beyond the scope of what was agreed are concerning and a new Committee or Sub-Committee may want to return to this in session 6.
Police Scotland has also announced plans for all officers to have body worn video cameras. Their aim is to commence with a rollout to armed police officers ahead of COP26.
As with previous technologies listed above, the Sub-Committee has privacy concerns and questions about the ability to use the pictures and video across the wider justice system which do not seem to have been addressed.
The Sub-Committee recognises and supports the need for Police Scotland to utilise the latest technologies to tackle crime and keep communities safe.
Our work has shown that there is still a need for Police Scotland to conduct detailed and appropriate assessments of these before deployment and for the SPA to ensure it holds the service to account in this area.
Our inquiry into cyber kiosks was pivotal in changing the approach followed by Police Scotland in this area and to encourage it to take a more human-rights based approach. We would encourage Police Scotland and the SPA to continue to follow this approach and use bodies such as the new Scottish Biometrics Commissioner and the EHRC in Scotland to assist them. We note in this respect that Police Scotland has recently established a Biometrics Oversight Board to provide strategic oversight and direction to the coordination of all Police Scotland policies which pertain to biometric data and future developments.
We would also encourage the SPA to look again at how it scrutinises purchasing decisions by Police Scotland which are below the £500,000 threshold but which raise potentially significant human rights and ethical issues.
The SPA’s lack of a governance process for Police Scotland purchases not exceeding £500,000 is, in our view, insufficient. Proposals to introduce new technologies, or additional functionalities, must be subject to robust scrutiny. Police Scotland has not ruled out introducing any technology, which will assist it in its role. This is an area which would benefit from future scrutiny.
Police Scotland also plans to purchase body worn video cameras for use by armed policing, with an estimated cost of £500,000. This is an imminent issue which requires close monitoring by a new Committee or Sub-Committee.
The Sub-Committee has sought to keep the impact of Brexit on policing under review, both before and after the UK ended its membership of the EU. Sessions with senior officers were held in October 2019, October 2020 and March 2021.
The Sub-Committee advises any successor to keep this issue on its work programme given the evidence taken recently that some of the arrangements for co-operation with the EU (e.g. SIS II and the replacement for the European Arrest Warrant) on policing are “sub-optimal”.
We encourage our new successor to look at the impact of the current court challenges to the workarounds that police forces in the UK have set up in relation to SIS II and the European Arrest Warrant, and whether these workarounds are found to be unlawful. It is also important that Police Scotland reports back on a challenge in the courts in Edinburgh on 24 March 2021 to the legality of an extradition sought from an EU member state by Police Scotland under the new arrest warrant arrangements.
Reform of the system for complaints against Police Scotland was a key issue for the Justice Committee following its post-legislative review of the 2012 Act. A review undertaken by Dame Elish Angiolini contained 111 recommendations and the Scottish Government has committed to bring forward the necessary legislation in the next session.
In addition to legislation, bodies such as the police and PIRC will be looking at changes in procedures and practices. For example, the Chief Constable said there would be an independent review of equalities issues. There is also the question of to whom the PIRC is accountable to and how the Commissioner is appointed.
The legislative changes will be for the Scottish Government in session 6 to take forward. The Sub-Committee undertook two evidence sessions to consider Dame Elish’s final report and the Scottish Government’s response to it. From the evidence received, we do not have a clear sense of the legislative changes that are to be made, whether these will all be in one bill or over several bills, and the timescale.
The Cabinet Secretary for Justice has committed to providing information on the Scottish Government’s website on its progress in taking forward the recommendations and to provide clarity on those that are not to be taken forward.
It will be for the session 6 Justice Committee to consider any legislation to address some of the recommendations. However, there may be a role for any future Sub-Committee on Policing to consider the progress made on a number of specific issues. These include the remit and timing of the independent review of equalities matters, and changes to the powers and responsibilities of the PIRC.
It is the Sub-Committee’s view that the Scottish Government should still publish a tracker which lists each recommendation along with details of the organisation that is taking it forward, how it is being progressed, and the timescale for doing so. An online infographic would also assist the public in understanding where responsibility lies for implementing each of the recommendations.
The Sub-Committee has explored this area to a limited extent during this session as although immigration policy is reserved, Police Scotland are still required to carry out policing functions within this area, with potential impacts on its relations with certain communities in Scotland. Police Scotland are also responsible for the policing of wider issues, such as human trafficking and the treatment of migrant people in Scotland.
The Sub-Committee has sought to engage with the Home Office in this matter. In March 2021, officials at the Home Office replied to our correspondence, indicating that:
“the December 2017 High Court judgment (Gureckis) ruled that any EU national found sleeping rough cannot, on this basis alone, be considered to have abused EU Treaty Rights. However, following the end of the transition period, the Gureckis legal judgment will no longer be applicable in the UK for an EEA national who arrived in the UK after 1 January 2021.”
And that:
“Whilst previously, Immigration Enforcement teams have conducted intelligence led operations in Scotland which identified a number of rough sleepers who were not exercising their treaty rights or who had criminal records which made them liable for deportation, there have been no proactive operations since the High Court judgement in 2017.”
The Home Office also confirmed that:
“In October, the Government laid new Immigration Rules before Parliament which provide a basis to cancel or refuse a person’s leave where they are found to be rough sleeping. The Government has made clear that the new rough sleeping rule will apply on a discretionary basis where a person refuses offers of support and is engaged in persistent anti-social behaviour. If a rough sleepers’ right to remain in the UK is cancelled or refused, the individual is expected to leave the UK. If they do not choose to leave voluntarily, the Home Office may enforce their removal.
The new Immigration Rules will apply equally throughout the UK.”
The Sub-Committee has also looked at the role played by two officers from the Vietnamese Ministry of Public Security who have been seconded to Police Scotland to assist with human trafficking issues.
The Sub-Committee believes that this is an area which our successor may wish to return to in session 6.
The Sub-Committee has explored the different programmes and plans put in place within Police Scotland in relation to the training and development of its officers and staff.
A report by HMICS said that there needed to be a renewed focus and investment in the training and development of officers and staff.
In our view, officers and staff will be key to the successful transformation of Police Scotland and our successor may wish to consider how HMICS’s recommendations are taken forward.
In addition to the above, the external bodies with whom we engaged for this Legacy Report suggest two other issues which our successor may wish to look at:
In the 2012 Act, the purpose of policing includes a specific commitment to improving the well-being of people and places. In that context, the Justice Sub-Committee could consider Police Scotland’s contribution to the work of the Drugs Death Taskforce, established in July 2019 following the publication of the highest number of drug related deaths since records began. In particular, the Sub-Committee could look at Police Scotland’s efforts to intervene and save the lives of highly vulnerable people through the administration of Naloxone, emergency medication that can be administered by a nasal spray to reverse the effect of an opioid overdose.
The Justice Sub-Committee could consider Police Scotland’s commitment to ensuring that police custody is no longer seen as a place where individuals are simply ‘detained and maintained’, but becomes an opportunity for interventions to support the health and wellbeing of individuals and to break the cycle of offending. Many of the services required to make this vision a reality are not in the gift of Police Scotland, but need investment and commitment from NHS Boards and third sector organisations.
As noted at the outset of our Legacy Report, the Sub-Committee was formed in session 4 to take forward scrutiny of the 2012 Act which set up the single police force. In session 5, it was considered that this need continued and was augmented by concerns over the functioning of the SPA in its early days.
In the latter stages of session 5, the legislative burden on the Justice Committee led it to taking a decision that almost all policing matters in the final few months of session 5 would be considered by the Sub-Committee on Policing.
To inform future decisions in session 6, we asked a wide range of stakeholders for feedback to inform our view of whether a Sub-Committee is still deemed necessary. We asked for views on how effective the Sub-Committee has been in session 5, if it still required and, if so, what issues it should consider. These responses can be viewed online.
The newly appointed chair of the SPA said in his submission that:
“The Justice Sub-Committee on Policing has played a driving role in improving the work of the Authority and the governance of policing. The Scottish Police Authority (SPA) has benefited greatly from the wide-ranging comment, discussion and debate in recent years. The Authority, as a relatively new organisation, has acknowledged challenges and welcomed improvement advice and recommendations.”
And that:
“Whatever decision is taken regarding the Justice Sub-Committee on Policing, the Authority looks forward to continuing to work with Parliament and its committees in the term ahead. The Authority is determined to play its full part within its policing functions to deliver the best possible outcomes for the public.”
It is a matter for the next Justice Committee to consider if there is a continuing need for a Justice Sub-Committee on Policing. Some questions that a successor will want to bear in mind to inform that decision are:
Is the system for governance and oversight of Police Scotland and the efforts of the SPA now working as Members wish? In this, Members may wish to note the comment from HMICS that they might wish to consider what they would need to see from the SPA as evidence that it was discharging its statutory scrutiny role effectively.
Is there sufficient time/resource within the main Justice Committee to scrutinise policing issues alongside its other work scrutinising criminal and civil justice matters?
Annex B set out the organisations from which witnesses were invited to provide direct oral evidence to the Sub-Committee as part of the various inquiry work it has undertaken since it was established in 2016. Many more organisations provided written evidence to the Sub-Committee. This demonstrates the breath of expertise and knowledge the Sub-Committee has drawn upon in carrying out its scrutiny function.
The Sub-Committee wishes to extend its thanks to all those who assisted it in carrying out its scrutiny role by providing oral or written evidence to the Sub-Committee.
If a new Sub-Committee is formed, its members may wish to ensure that it is able to meet at a suitable time in the parliamentary week which enables it to complete its work as there have been some constraints with its current meeting slot on a Thursday lunchtime, which has often meant curtailing meetings as business in the Chamber commences.
List of organisations and individuals who gave views to the Sub-Committee as part of its Legacy report process:
HMICS
Home Office
Police Scotland
Scottish Government
Scottish Police Authority
Submissions are available online
List of organisations represented by witnesses giving oral evidence to the Sub-Committee as part of its scrutiny role throughout Session 5:
Association of Scottish Police Superintendents
Audit Scotland
Big Brother Watch
Children and Young People's Commissioner Scotland
Durham University Department of Sociology
Faculty of Advocates
HM Inspectorate of Constabulary in Scotland
Howard League Scotland
Independent Advisory Group on Police Use of Temporary Powers related to the Coronavirus Crisis
Information Commissioner's Office
Law Society of Scotland
Open Rights Group
Police Scotland
Positive Prison? Positive Futures
Scottish Centre for Crime and Justice Research, University of Stirling
Scottish Government
Scottish Human Rights Commission
Scottish Police Authority
Scottish Police Federation
Scottish Refugee Council
Unison Scotland
University of East Anglia School of Law
University of Stirling