Justice Committee

Meeting date: Tuesday, March 12, 2013

Official Report 596KB pdf

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Subordinate Legislation

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Police and Fire Reform (Scotland) Act 2012 (Supplementary, Transitional, Transitory and Saving Provisions) Order 2013 [Draft]

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Police and Fire Reform (Scotland) Act 2012 (Consequential Modifications and Savings) Order 2013 [Draft]

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Police Investigations and Review Commissioner (Investigations Procedure, Serious Incidents and Specified Weapons) Regulations 2013 [Draft]

Agenda item 2 is subordinate legislation. We will take evidence from the Cabinet Secretary for Justice on three instruments that are subject to the affirmative procedure. I welcome the cabinet secretary and the Scottish Government officials. Christie Smith is head of the police and fire reform division, Stephanie Virlogeux is a senior policy manager, Jean Waddie is a policy analyst and Andrew Campbell is a solicitor.

I invite the cabinet secretary to make an opening statement on all three instruments.

Thank you, convener.

I am pleased to be here to discuss the three statutory instruments, which are among the last remaining pieces in the legislative jigsaw that will enable the police service of Scotland and the Scottish fire and rescue service to go live on 1 April this year.

The Police and Fire Reform (Scotland) Act 2012 (Supplementary, Transitional, Transitory and Saving Provisions) Order 2013 is key to achieving a smooth transition to the new services. It will ensure that everything that is done before 1 April will continue on and after that date. Warrants and licences will continue to be valid, notices and directions will still be enforceable, legal proceedings can continue without interruption, and any reference in any document to the old services will be read as a reference to the new services. The order also makes arrangements for completion of the final accounts of joint boards, which will be abolished on 1 April.

The Police and Fire Reform (Scotland) Act 2012 (Consequential Modifications and Savings) Order 2013 is the final part of the exercise of identifying amendments that are consequential to police and fire services reform. More than 400 separate acts and instruments have been considered, and around 250 have been amended to reflect the new names and structures of the single services.

The Police Investigations and Review Commissioner (Investigations Procedure, Serious Incidents and Specified Weapons) Regulations 2013 are the final step in the process to deliver independent scrutiny of the most serious incidents involving the police from 1 April. That is a crucial part of providing assurance to the public and of maintaining confidence in Scottish policing.

The police investigations and review commissioner and his team are well prepared to take on that role. The commissioner has worked closely with partners, including the Association of Chief Police Officers in Scotland and the Crown Office and Procurator Fiscal Service, to establish what capacity and capability will be needed to deal with investigations. Investigations staff who have the skills and expertise that are needed to carry out effective investigations have been recruited and are now in place. The commissioner will have agreements in place on 1 April with key partners, such as the police service, so that they can work together effectively.

The PIRC’s having been set up, it is important to ensure that serious incidents involving the police are referred by the chief constable or the Scottish Police Authority for investigation, and that the commissioner’s investigators can carry out their role with the full co-operation of the police service and the SPA. That is the main purpose of the regulations. They will also allow the commissioner to decide whether to carry out an investigation, except in cases in which a death is involved—investigation of such incidents is compulsory. Giving the commissioner that discretion will ensure that the PIRC’s resources are focused on the most serious cases.

Thank you very much, cabinet secretary. Do members have any questions?

Good morning, cabinet secretary. I have a question about the third instrument. Can you expand on what options or avenues are available to a complainer where the police investigations and review commissioner refuses to investigate his complaint?

The complainer could go to the Lord Advocate if the matter related to a criminal offence. Otherwise he would be able to write to me or raise the issue with any other member of the Scottish Parliament. The formal structure of PIRC has been set up to replace the Police Complaints Commissioner for Scotland, which is the independent body that considers such matters, and after that there is the world of political lobbying and holding me accountable in Parliament.

I have a couple of questions about the detail of the legislation, one of which is cosmetic, to some extent. In the newspapers, we see that the new service will be called “Police Scotland” but it has different nomenclature in the act. Will there be any difficulty for the service in the future if it has a different public title, or is that not a consideration?

I do not think that it is a consideration. How the body refers to itself is not a contractual matter. I have been asked whether local names—police Perth or whatever—could be used, and I am perfectly relaxed about that. The formal name will be the “Police Service of Scotland” but it will be portrayed as “Police Scotland” on its insignia and so on. I see no legal impediment to use of localised names, nor do I have any opposition to it.

Will arrangements to deal with complaints about former police bodies, constables and staff also extend to chief officers? I raised a similar point earlier.

Yes, there are specific arrangements for that. Further discussions will have to be held with the chief constable, but arrangements exist to cover chief officers.

To go back to a point that John Lamont raised, the policy document mentions that, when a crime is suspected, the PIRC will become involved. It is still not clear in my mind who will decide about and who will be in charge of the investigation. Will it be PIRC staff and members or will it be the Crown Office and Procurator Fiscal Service? How will that system work in practice?

What will happen will be essentially the same as with any other investigation. The Crown has primacy and it is envisaged that there will be a number of circumstances in which the Crown will find it convenient to instruct the PIRC to carry out the investigation. There might be circumstances in which the Crown instructs another police force or some other kind of investigator, but the PIRC will be there to carry out the majority of such investigations. However, on criminal matters, it will report back to the Crown—as would any other investigative agency.

If a police officer or a member of staff commits a crime, would the police be expected to deal with that as they would normally through arrest, production of evidence and a report to the procurator fiscal, or as the policy note indicates, by sending for the PIRC, which would do the investigation and report?

If anyone suspects that an offence has been committed, they would follow all the normal procedures through the procurator fiscal and so on. If there is a serious incident, which might not necessarily be seen as a criminal offence on the face of it, but the PIRC or the police authority think that it might involve criminality, it will be referred to the procurator fiscal.

Joint boards will come to an end at the end of March. Does that have any implications in terms of redundancies for councillors who are currently on those boards? Is there a financial implication?

There is not, as far as I am aware.

That would not count as redundancy. It is the same situation as when a council decides to abolish one committee and create another. The end of joint boards will have implications for individual councillors, but membership of the boards is not a form of employment and it does not bring with it redundancy provisions.

I have one other point to make.

Can we come back to you, Graeme? I have John Finnie now.

Yes—please.

I seek clarification of a point from Mr Smith, and then I have another general question.

In response to a question from Mr Pearson you mentioned how another police force could carry out an investigation. What other police force could investigate crime in Scotland?

Any other police force could investigate crime in Scotland. The Crown can ask anyone to investigate, so that would be perfectly possible, although it would be unusual. We do not envisage circumstances in which it would happen but, ultimately, the Crown decides how crime is investigated in Scotland.

There would be significant challenges for police officers who were not trained in Scots law undertaking any investigation.

I am sure that the Crown would take that into account in deciding who was best placed to investigate.

With regard to the police investigations and review commissioner, when other bodies have been set up in the past, people have sought to revisit issues. Is there an expectation that that will happen with the new set-up? What level of retrospection could be applied to any investigation that could be initiated?

I have had discussions with the Police Complaints Commissioner for Scotland, because we have continuity with Mr McNeill agreeing to stay on, and with the Lord Advocate. I am not aware of the Lord Advocate having any intention ever to instruct a force outwith Scotland but, as Christie Smith says, that right remains.

The Police Complaints Commissioner for Scotland has already run a well-balanced operation. We can anticipate that, as he moves into his new role and title, he will continue to exercise good judgment and balance to sift out cases that he views as being vexatious or lacking in any significant basis. Whether they are historic or contemporary, I think that he will continue to operate the same procedures.

I suspect that this is just a continuation of previous arrangements, but was any consideration given to discontinuing the system whereby a chief constable can

“pay rewards for exceptional diligence by constables and staff from former police services”?

In many respects, that is a highly divisive payment regime.

The approach that we have taken with the regulations is to carry forward existing terms and conditions of service for constables. The ability to pay rewards is part of those terms and conditions, so we have not sought to change it.

I take the view that those are matters between the chief constable and the representatives of the force, whether they are from the Association of Scottish Police Superintendents or the Scottish Police Federation. We have not sought to intervene in any way and have, therefore, simply continued the arrangements. Doubtless they will be the subject of the discussions that take place regularly between officers, their representatives and their employer, whether that is the chief constable or the authority.

On page 15 of our briefing, we are told that regulation 6 provides that the use by a police officer of

“any item to cause or attempt to cause injury to a member of the public can be treated as a serious incident.”

The briefing goes on to describe the type of situation that is in mind: one in which the officer does not have access to his or her own protective equipment and uses some other device to protect themselves. Would the PIRC be involved every time an officer was involved in such circumstances or would it be sufficient that the procurator fiscal received a report, considered the circumstances and made a judgment about whether further inquiries were necessary? It looks from the briefing as though the PIRC would almost automatically be involved if an instrument other than a baton was used.

Your description of the situation is correct, Mr Pearson. That kind of incident would count as a serious incident, which is something that the PIRC may, but not must, investigate.

The committee has received correspondence—as it does all the time—from members of the public who are concerned about the openness of investigations of the police and the ability of such investigations to be seen to be accountable. The concern has been expressed that it will, because we will now have a single police force, be difficult for the authorities to show fairness and openness in investigating complaints.

Among the evidence that was provided was the fact that many former police officers are now employed by the Police Complaints Commissioner for Scotland. What view do you take of that? Is that a long-term policy or would you like the PIRC to become more and more independent as it gains experience?

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First of all, people should rest assured that any malfeasance or actions that are unacceptable or illegal will be dealt with by the police. The Crown and the PIRC, as a successor to the Police Complaints Commissioner for Scotland, will deal with any failings. We must also remember that the PIRC can investigate matters, including sudden death, involving police officers.

Professor John McNeill has a good balance of people coming into the PIRC from a variety of trades, including trading standards, and other investigatory agencies. How that develops will depend on the culture that will grow under the PIRC. Professor McNeill and his predecessor got the right balance in PCCS by having a culture of being firm and hard when necessary but, equally, of not suffering complaints that could be viewed as being more malevolent towards individual serving officers.

He has the right balance in the PIRC; there are sufficient people with experience to do the job from 1 April and continue with what was being dealt with before. He has also brought in other expertise to deal with the new challenges in a single police force to address, as I mentioned, allegations of impropriety. Such matters will develop as the body evolves, but there is an appropriate balance of non-police people and police officers with the necessary skills.

There are no more questions for the minister. Item 3 is the debate on the motions to approve the three affirmative instruments considered under the previous item.

No members wish to speak in the debate, so I invite the minister to move motions S4M-05847, S4M-05848 and S4M-05849.

Motions moved,

That the Justice Committee recommends that the Police and Fire Reform (Scotland) Act 2012 (Supplementary, Transitional, Transitory and Saving Provisions) Order 2013 [draft] be approved.

That the Justice Committee recommends that the Police and Fire Reform (Scotland) Act 2012 (Consequential Modifications and Savings) Order 2013 [draft] be approved.

That the Justice Committee recommends that the Police Investigations and Review Commissioner (Investigations Procedure, Serious Incidents and Specified Weapons) Regulations 2013 [draft] be approved.—[Kenny MacAskill.]

Motions agreed to.

Cabinet secretary, I thank you and your officials for attending.

10:17 Meeting suspended.

10:18 On resuming—