Chamber and committees

Amendment 16 relates to the creation and publication of an advisory list. The bill, as drafted, indicates that both the advisory list and the barred list will be made public. My amendment seeks to ensure that the advisory list is not published. Although I appreciate that there is an argument for allowing the public to know who is on the barred list and on the advisory list, I do not believe that the advisory list should be made public.

I believe that it is important to take direction from England and Wales, which already have barred and advisory lists in place, and I note that it is the Scottish Government’s intention to follow the model that exists elsewhere in the UK. The procedure in England and Wales is to not publish the advisory list.

Amendment 17 concerns people and groups who should consult the barred list before employing someone, including the Scottish Police Authority and the Police Service of Scotland. Where the information shared in the barred list is more crucial to those bodies, the amendment would ensure that they consider it. The bill as introduced leaves it to Scottish ministers, through secondary legislation, to decide who must consult the lists. I believe that it would be prudent to have a short list of people and groups who must consult the information on the barred list, where that would be most relevant to them.

Amendment 18 would add a further requirement to the advisory and barred lists. It would introduce a requirement on Scottish ministers to give notice to

“a person who is to be entered in or removed from, the advisory list or the barred list.”

That would ensure that people who are placed on those lists are kept informed about that.

Amendment 19 would add further points about the advisory and barred lists. It would allow people to ask for

“a review of the decision to enter them in to the advisory list or the barred list.”

The person would also be required to engage with the disciplinary process to be able to ask for a review. It is important that people who have actively participated in disciplinary proceedings are given the right to review the conclusion.

The rest of the amendments in the group are consequential. I will mention them again, but I am pleased that the cabinet secretary has indicated that the Government will support amendments 18, 20 and 22 to 24, and that it will support amendment 17 if amendment 21 is not moved. I will not move amendment 21 and I look forward to the cabinet secretary’s comments.

I move amendment 16.

I have no other comments to make. I press amendment 33.

Amendment 33 agreed to.

Amendment 63 not moved.

Amendments 34 and 35 moved—[Angela Constance]—and agreed to.

Section 11, as amended, agreed to.

Section 12—Call-in of relevant complaints

Amendments 36 and 64 not moved.

Amendments 37 and 38 moved—[Angela Constance]—and agreed to.

Section 12, as amended, agreed to.

Sections 13 and 14 agreed to.

Section 15—Review of, and recommendations about, practices and policies of the police

Amendment 12 seeks to define a time limit for misconduct proceedings being initiated against former constables. The amendment would mean that regulations would have to provide for a period after which the ability to take action against a former constable would cease to be available. The bill as drafted says only that such a time limit “may” be created. It is essential that proceedings against a former constable cannot be initiated indefinitely. I recognise the importance of being able to conduct proceedings against someone who has ceased to be a constable and that the provisions deal with an important issue, but a particular period must be set in which such proceedings can be initiated.

My amendment 13 proposes that the specific time limit is set at 12 months. That seems reasonable and reflects the suggestions in the Scottish Government’s policy memorandum.

Amendments 51, 14 and 52 set out criteria that would allow proceedings to commence outwith the time limit to ensure that proceedings could be initiated in appropriate circumstances. The criteria include a public interest test, circumstances in which the investigation leads to the person being placed on the barred list or the advisory list and circumstances in which the behaviour amounts to a criminal offence.

Amendment 13 is consequential to amendment 12 and would mean that a time “not exceeding one year” would be set in which proceedings against former constables could commence.

Amendment 51 relates to previous amendments. It would set a test for allowing proceedings to begin against someone more than a year after they had ceased to be a constable. The two criteria are a public interest test and if an officer, after being subject to an investigation, with unsatisfactory behaviour being proven, was put on the barred list or the advisory list. That would ensure that proceedings could, when appropriate, continue outside the set time period.

Like amendment 51, amendment 14 sets out a criterion that would allow proceedings to commence against someone who had ceased to be a constable. The criterion is that such proceedings would be in the public interest. The amendment would ensure that the proceedings could, when appropriate, continue outside the set time period.

Amendment 52 sets out a further exception to the time limit being followed for commencing proceedings against former constables. That exception is that, when the behaviour in question amounts to a criminal offence, proceedings can, when appropriate, continue outside the set time period.

Amendment 53 would add to the procedure for conducting misconduct proceedings against officers who left following allegations of misconduct. It seeks to ensure that a constable would be provided with notice that disciplinary proceedings against them would continue if they resigned during proceedings and that, if they did not engage, the proceedings would continue to a conclusion in their absence. The amendment addresses concerns about officers resigning and facing no investigation into their actions, so disciplinary proceedings would proceed and would come to a conclusion in their absence if they chose not to engage, although they would be kept informed of proceedings.

Amendment 54 relates to circumstances in which an officer faces both disciplinary and criminal proceedings. First, it would mean that disciplinary proceedings could continue despite criminal proceedings also taking place. It would also mean that evidence and the outcome of the disciplinary proceedings would be kept private until the criminal proceedings had concluded. During our evidence, we heard criticism about delays to disciplinary processes. Amendment 54 seeks to tackle that problem. It would ensure that there were no unnecessary delays in conducting disciplinary proceedings and, subsequently, in dismissing an officer while criminal proceedings were on-going. The amendment would also mean that criminal proceedings were not impacted by the outcome of disciplinary procedures.

Amendment 6 adds to the provisions that would introduce a duty of candour to the Police Service of Scotland (Senior Officers) (Conduct) Regulations 2013. The amendment stipulates that officers who are suspected of committing a criminal offence would no longer be required to follow the duty of candour, which would give them the same rights as civilians. During our evidence sessions, various bodies raised concerns that the duty of candour conflicted with the right against self-incrimination. Notably, in England and Wales, the duty applies only when an officer has been identified as a witness and not a suspect. My amendments 6 and 9 address those concerns.

However, we will support the cabinet secretary’s amendments. The cabinet secretary has indicated that her amendments 7 and 10 address the intention behind my amendments, so we have the same aim. I do not intend to move amendments 6 and 9 at this stage.

Given the cabinet secretary’s comments, I will not move amendment 40, but I press amendment 39.

Amendment 39 agreed to.

Amendment 40 not moved.

Section 15, as amended, agreed to.

Sections 16 and 17 agreed to.

After section 17

I will.

I agree with Russell Findlay’s comments, and I take on board all the cabinet secretary’s comments. It is a very sensitive subject. Amendment 41 was a response to comments about the stress and anxiety that officers felt when they were going through the misconduct process, which could have been a contributing factor that led to suicide. That is why we were looking to amend the bill. I appreciate that it is a sensitive subject and that we need to consider lots of other issues. We will probably want to come back to discuss the matter.

However, given the cabinet secretary’s comments, I will not press amendment 41.

Amendment 41, by agreement, withdrawn.

Amendments 42 and 65 not moved.

Sections 18 to 20 agreed to.

Long Title

Amendment 47 moved—[Angela Constance].

No—the position is as the cabinet secretary said. It is not about consulting every person who has had a complaint in the police system but about taking a group of those people, so that their voices can be heard. We heard evidence on that in the committee. Amendment 4 would ensure that a selection of people were consulted and that we heard their voices in the production of the code of conduct.

Yes.

Amendment 12 agreed to.

Amendments 13 and 51 not moved.

Amendment 14 moved—[Sharon Dowey]—and agreed to.

Amendments 52 and 53 not moved.

Section 6, as amended, agreed to.

After section 6

Amendments 54 to 56, 15 and 58 not moved.

Amendment 39 concerns reviews that the commissioner can undertake into a practice or policy. It will ensure that, before commencing such a review, the commissioner has to consult HMICS. The intention of the amendment is to avoid the duplication of work and to ensure that bodies work co-operatively to streamline the complaints process.

Amendment 40 adds to amendment 39. It would require the commissioner to assist HMICS with any work that is related to such a review. The intention of the amendment is, again, to avoid duplication of work and ensure that bodies work co-operatively to streamline the complaints process. That is a role that sits with HMICS. The cabinet secretary has indicated that she will support amendment 39. I ask her to consider working on amendment 40 to bring it back at stage 3. I look forward to her comments.

I move amendment 39.