Official Report 653KB pdf
Police Service of Scotland (Conduct) Amendment Regulations 2026 (SSI 2026/276)
Police Service of Scotland (Senior Officers) (Conduct) Amendment Regulations 2026 (SSI 2026/277)
09:08
The next item is consideration of two instruments that are subject to the negative procedure. Members have received written submissions and correspondence in relation to the instruments. There are motions that require to be considered by the committee before the expiration of the parliamentary scrutiny period. I cannot yet confirm when the motions will be taken, but a minister and officials will be in attendance at the meeting in question, and members will be able to ask them questions ahead of debating the motions.
I invite members who might want to comment on the motions to do so. I have received an indication that Stephen Kerr wants to make a comment.
With your permission, deputy convener, I would like to explain that I have lodged motions to annul both of the statutory instruments because of serious concerns about their fairness and independence and the consequences of creating a two-tier disciplinary system. I want colleagues in the committee to consider the evidence that we have now received and further evidence that we should seek—in particular, I draw the committee’s attention to the letter that we have received from Calum Steele—and we should do that before deciding whether the regulations should be allowed to pass without a challenge.
For me, the central issue is fairness, which must apply irrespective of rank. Dame Elish Angiolini’s 2020 review was clear. Her recommendation 27 called for gross misconduct hearings across all ranks—not simply for chief constables but for every rank—to have an independent legally qualified chair, an independent lay member and a policing member. At paragraph 12.61, she considered the additional costs of that and concluded that the benefits of
“independence, transparency and public confidence”
outweigh them.
However, the regulations depart from that recommendation. Senior officers receive independent panels with legally qualified chairs, but other officers continue to have their cases determined within the police disciplinary structure. Why should a constable facing dismissal have less independent adjudication than a chief constable facing precisely the same consequence? What evidence justifies rejecting Dame Elish Angiolini’s recommendation?
There is a striking inconsistency even within the Cabinet Secretary for Justice’s own words on the matter. Speaking to the Association of Scottish Police Superintendents in June, Neil Gray warned that perceptions of preferential treatment for senior officers and inconsistent standards went to the
“heart of confidence, fairness and legitimacy”.
He said that such perceptions “undermine trust in leadership”. How can ministers acknowledge that danger and then introduce regulations that establish different standards of independence according to rank? That is precisely the perception that we should eliminate.
The Association of Scottish Police Superintendents understands the responsibilities that are placed on misconduct hearing chairs and the pressures that are inherent in the disciplinary decision-making process. We should hear directly from the association about whether the arrangements provide sufficient independence, competence and protection from improper influence.
On that point, Calum Steele’s letter is troubling. He served 15 years as the general secretary of the Scottish Police Federation and has extensive experience of disciplinary proceedings. He reports accounts of hearing chairs being pressured to deliver particular sanctions before evidence has even been heard, including alleged references to their career progression. He also describes investigations concentrating on evidence that supported allegations while failing to pursue evidence that might exonerate the officer. Those are serious allegations that require examination.
How can officers have confidence in a process in which investigation, presentation and initial adjudication remain substantially within the same organisation? External appeal safeguards exist but might come only after careers have been damaged, expense has been incurred and proceedings have been prolonged. Is it surprising that some officers perceive a two-tier system or describe the existing arrangements as a kangaroo court? Perception matters—the cabinet secretary himself said so.
There is also the issue of the threshold for gross misconduct. Calum Steele argues that
“allegations are too readily classified as gross misconduct”,
only to be resolved at a lower level. He questions whether performance issues are being pursued through disciplinary procedures with dismissal becoming the starting assumption. Who determines the threshold for gross misconduct? How often is the original classification reduced? What independent scrutiny exists? A gross misconduct allegation can cause immense damage before wrongdoing has even been established.
We should consider the effect that delays have on those involved, because reporting of Police Scotland’s professional standards departments has been cited as showing an average of 389 days to conclude investigations and hearings. I want clarification of precisely what that figure measures. It is reported that some officers have remained suspended or on restricted duties for years, with careers in limbo, families living with uncertainty, officers facing financial and emotional strain, and complainants and victims denied timely answers. The process itself must never become the punishment, which I fear is what is happening.
When proceedings are mishandled or dismissals are overturned, who is accountable? Who pays for the errors? What effective recourse exists, without costly appeals and litigation?
09:15
Calum Steele has identified troubling provisions in SSI 2026/276. Regulation 15, which would introduce regulation 16A, would permit someone without legal qualifications to determine complex legal arguments at pre-hearings. Regulation 16A(8) would permit earlier procedural decisions to be reconsidered in specific circumstances. What safeguards would ensure that such discretion would be exercised fairly, with proper reasons given and effective recourse? Regulation 17, which would amend regulation 18, raises questions about presenting officers’ submissions and the admission of written evidence instead of oral testimony. How might contested evidence be effectively challenged? What would ensure that the provisions operate fairly? Those questions concern the integrity of decisions, including those that involve dismissals being overturned because procedures were defective.
What about openness and accountability? There is greater provision for public scrutiny of senior officer proceedings, with other officers facing different arrangements. Publishing an outcome is not equivalent to allowing for public scrutiny of how it was reached.
His Majesty’s Inspectorate of Constabulary in Scotland has identified serious weaknesses relating to conduct and discipline. We need to establish what has been done to address them. That is why I want the committee to take evidence from Calum Steele, the Scottish Police Federation, the Association of Scottish Police Superintendents, HMICS and, of course, ministers. We need answers on the questions about independence, gross misconduct thresholds, overturned decisions, delays and representation costs, and we need to know the Government’s justification for departing from the Angiolini review’s recommendation.
We cannot amend the instruments. The procedure that is being used means that we cannot retain the provisions that we approve of and remove those that we find objectionable. We must judge each instrument as a whole. That is why I have lodged motions to annul the instruments.
In my view, ministers have departed from the clear recommendation of the Angiolini review without providing convincing evidence that their alternative approach is fairer, more independent or more effective. The allegations that Calum Steele has raised, the weaknesses that HMICS has identified and the contradictions in the Government’s position deserve proper parliamentary examination. The burden on ministers is to justify the regulations. In my view, they have not yet discharged that responsibility, so the committee should not endorse the regulations until they do.
I thank the committee for its indulgence.
I thank Mr Kerr for taking the time to set all that out for the committee and for those who are listening and observing.
Do any other colleagues around the table want to contribute?
I thank my colleague Mr Kerr for providing that detailed summary, with which I very much agree.
I would like to make a point about two legal concepts: article 6 of the European convention on human rights and the case of Porter v Magill in the United Kingdom. I will put this in simple terms: would a fair-minded and informed observer, having considered the facts, conclude that there was a real possibility of bias? If a rank-and-file officer is going through a disciplinary procedure, will there be perceived or real bias? That troubling question needs to be answered. In addition to everything that Mr Kerr has said, we need to understand the legal perspective and analysis in that regard. Has the Government received legal advice on the legislation? If so, what has it done with that advice?
I have to say that what really concerned me was the response of 6 October 2026 from the cabinet secretary Neil Gray to Stephen Kerr's letter. I will just read it out. It says:
“Ministers were clear about the practical and governance implications of extending independently chaired misconduct panels to all officers. Such a model would introduce additional costs and administrative complexity, risk extending the time taken to conclude misconduct proceedings, and remove an important element of the Chief Constable's responsibility for the direction, control and discipline of police officers. Extending access to thousands of Constables, including for minor sanctions, would have serious implications for both Police Scotland and the Scottish Courts and Tribunals Service”.
If decisions that might affect people’s careers, and which raise the likelihood of their losing their jobs, are being made on the basis of costs and administration, we really need to unpick that and understand what it is about. Is it an influencing factor? If so, is that acceptable?
Thank you very much. I believe that Pauline McNeill wants to come in, too.
First of all, I thank Stephen Kerr for raising this issue. Since he did so, we have had quite a bit of correspondence on it.
As someone who sat on our predecessor committee and scrutinised the legislation in question, I think that what the cabinet secretary says is fair. We did not, to my recollection, challenge this matter, although I think that we did try to scrutinise it. It is probably more for other committee members who have not looked at this before to make their views known to Parliament as to whether they think this should be changed.
It is important to point out that, for those with no knowledge of police disciplinary procedures, it was extremely difficult to scrutinise the framework of conduct that has led to these regulations. It was all new to the committee, and there was a lot to unpick. What we are looking at today is just one element, so we can spend some time on it, whereas the previous committee had to look at the whole thing.
A point that I think is relevant here, although we are not considering it this morning, brings me back to what Amanda Bland has just said about fairness and there being a fair process for police officers who are potentially facing dismissal. That was the reason for my raising during the passage of the legislation the relationship between this issue and vetting—and I stand by that. At the time, I was concerned that, although we did need to modernise and refresh the vetting requirements, vetting in itself might be used as a substitute for sacking police officers for gross misconduct. It is just not clear to me what the relationship between the two is. I know that the Scottish Police Federation has taken a case on exactly that matter to judicial review—or it might have been the police tribunal. In that case, it was decided that a police officer was not guilty of gross misconduct; he got his job back; and then he failed the vetting.
I just wanted to draw the committee’s attention to that, because we will have to scrutinise other sets of regulations that are coming down the track—and there will be more of them. Under this framework legislation, Police Scotland will develop some regulations under its rules, and some will be developed under the legislation that we ourselves have passed. It just speaks to the fact that post-legislative scrutiny might be more important than we think, and that we should, perhaps, give more time to it than we have in the past.
I will leave it to other members to decide whether we got this right or wrong, but I just wanted to make that contribution. I think that there is an important relationship to consider in all of this.
I should say for completeness that I recall being on the previous iteration of this committee and scrutinising that legislation.
Also for completeness, I point out that we received correspondence from the Scottish Government yesterday in addition to the correspondence referred to by Amanda Bland. I believe that it can be read on the website.
I call Maggie Chapman.
Just very briefly, I think that, in addition to this conversation, the discussions that we will have on this matter in the coming weeks will be really important, and I would like us to factor into our thinking how this is perceived. We know that, in order to have policing by consent and to ensure that there is a good relationship between police officers and the communities that they serve, there needs to be trust, so we need to look at what either a single or a two-tier system—whichever we end up with—does to public trust and confidence in the police. I want to put that marker down now, because I think that that will be an interesting area to explore in our conversations with witnesses in subsequent weeks.
Absolutely. Do colleagues have any further comments?
Interestingly enough, on the point that Amanda Bland made about issues of cost and complexity, they were, as I referred to in passing in my remarks, issues that Dame Elish Angiolini considered six years ago, and it was in the context of the public confidence issue that Maggie Chapman has just raised that she decided that this was necessary in cases of gross misconduct. The whole issue of what constitutes gross misconduct is, of course, something else that we will examine over the next couple of weeks, but I think that it is relevant to tie all of this together, including the comments that Pauline McNeill made about vetting. It is clear—to me, at least—that there are many loose ends here that we need to attend to.
I thank colleagues for putting their views and positions on the record. As I said in the lead-up to the discussion, I cannot confirm when the motions will be considered, but a minister and their officials will be in attendance, and members can ask them questions ahead of debating the motions.
If colleagues are content—
I would just like raise an issue for discussion later, deputy convener. As well as hearing from the organisations that I have listed, I wonder whether the committee might, when we talk in private, consider whether there might be scope for us to hear directly from police officers who have been directly impacted by this. Any such sessions would probably need to be taken in private, but I think that it would be useful for the committee to hear at first hand what has happened in some of these cases. I know that the temptation will be to see such cases as the norm—they will not be—but when we have a system that throws out some of the experiences that I think all the committee members will be aware of, and which individual police officers and their families have been through, that should weigh on our minds, and we should consider it in our deliberations. I just wanted to put that issue out there for further discussion when we move into private session.
Thank you, Mr Kerr. You have put those comments on the record, and we will consider the issue in private, as you have suggested.
Is the committee content to seek further written evidence and take oral evidence on the matters that have been raised, and to schedule further consideration of them at a future meeting?
Members indicated agreement.
I will suspend briefly to allow us to get organised for our round-table evidence session on pre-budget scrutiny for the financial year 2027-28, which we will have shortly.
09:28
Meeting suspended.
09:34
On resuming—
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Pre-budget Scrutiny