Chamber and committees

I will do my best to respond to all the points on details that members have raised this morning.

I will, of course, listen carefully to the on-going concerns of members and partners. I will not put a pause on matters, but that does not preclude listening and engagement in advance of stage 3.

I have endeavoured in good faith to respond to the committee’s recommendation which, as I recall, was unanimous. I gave a commitment to Parliament at stage 1 to return to the matter, and I will return in a moment to the detail of why this approach was taken.

It is factual to state that His Majesty’s Inspectorate of Constabulary made this recommendation after the bill was published. I appreciate that the bill was published some time ago, back in June, and stage 2 is the first opportunity that I have had to insert these amendments.

The amendments are crucial for many of the reasons that Ms Clark outlined. I appreciate that parliamentary timescales are often swift. We all, as individual parliamentarians, work on our own amendments and they are then shared with others in the week or the days prior to proceedings. I understand that, but some of the timescales are not within my gift.

On why there needs to be such detail, the recommendation was for a power to dismiss those who fail to maintain or obtain vetting. However, that requires the legislation to establish a regime of vetting—that is inescapable. I understand why people might question the length of the amendments and the scope and detail of the power. However, if we want to give a power to dismiss—a power that I would advocate is crucial—we need to establish the scope of the regime. I do not believe that there is any way around that.

I turn to some of the more detailed aspects. The definition will be in regulations, and it will be consulted on as required under the 2012 act. These provisions are being added after the introduction of the bill because of the concerns and recommendations that have been made. I do not need to rehearse those, because the committee sat through many weeks and months of evidence.

My officials have engaged not only with HMICS, Police Scotland and the Scottish Police Authority but with ASPS and the Scottish Police Federation. Although I will not pause today, I will nonetheless continue to work with—

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.

This is the largest of the groups of amendments, so I will take some time to set out my position on the 19 amendments. I will start with those amendments that I support.

I support Sharon Dowey’s amendments 12 and 14, as they would put into the bill what was intended to be done in regulations on applying misconduct procedures to former constables—namely, requiring a time limit and the inclusion of a public interest test in the criteria for disapplying the time limit.

Although I cannot support amendment 13—which sets out a time limit of one year—because of a defect in the drafting, I agree in principle with the time limit of one year. I therefore ask Ms Dowey not to move the amendment, and I will work with her on an amendment for stage 3.

Likewise, amendment 53 would put in the bill a requirement to give notice to a constable, which was intended anyway, but it needs to be reworded to avoid giving constables the wrong impression that, if they engage, proceedings will not continue. I will work with Ms Dowey on an amendment on that subject for stage 3.

I cannot support amendment 51. It is an alternative to amendment 14, which I support, but its effect is quite different. It would disapply the time limit in a blanket fashion that would not allow the merits of the case to be considered. There is also a fundamental misunderstanding in relation to the barred and advisory lists. A person can be added to the barred list only if they are dismissed, and it is not possible to say whether someone will be dismissed until the proceedings have concluded and mitigation has been heard. Also, no finding would ever result in someone being placed on an advisory list, which is a holding list. I therefore strongly oppose amendment 51.

Amendment 52, like amendment 51, would disapply the time limit in a blanket fashion, without consideration of the individual merits—in this case, whether the allegation was of potentially criminal behaviour. The proportionality of disciplinary proceedings indefinitely being left hanging over a constable accused of a very minor offence, even if it was never prosecuted, would also be questionable, so there would be a real risk if the provision was included in the bill.

Amendment 54 would require disciplinary proceedings to continue despite there being on-going criminal proceedings. The amendment is highly problematic in the sense that it could jeopardise criminal proceedings because it would require conduct proceedings to continue while criminal proceedings were on-going, regardless of the prejudice that that could cause to the criminal case and of any risk to witnesses that might be involved, for example.

Ultimately, if criminal cases were prejudiced to such an extent that the proceedings were dismissed, convictions could not be secured in serious cases. In cases involving sexual offences or physical violence, for example, that could present a real public safety concern. Although the misconduct proceedings might have been able to be completed, they could, at most, result only in a person no longer working in policing. The proceedings could not require the person to be monitored as a sex offender, nor could they require imprisonment of the person if they posed a severe risk to the public.

Amendment 32, which is related to amendment 54, contains an avoidance-of-doubt provision that misconduct procedures

“may apply to a constable during any period where criminal ... proceedings are ongoing”.

However, the situation is already clear in the conduct regulations, so there is no doubt to be avoided.

Misconduct proceedings can lawfully continue while a criminal investigation is on-going, but they are often paused until after the criminal case is heard, so as not to jeopardise criminal proceedings. That can be for many reasons, not least the fact that witnesses, including the constable, come to the criminal proceedings having already had a rehearsal in the misconduct proceedings, which can seriously undermine the integrity of the oral evidence in the criminal trial. A ban on evidence or outcomes of the disciplinary proceedings being published fails to appreciate the problem that would be presented by misconduct proceedings progressing to a full hearing in advance of the criminal trial.

There can be no blanket rules that would allow misconduct proceedings to continue regardless of the risk of injustice or the risk that the criminal proceedings would be jeopardised. As I outlined, there is a very real risk to the public in jeopardising criminal trials. There are, however, possible solutions to be explored in further dialogue between Police Scotland and the Crown Office and Procurator Fiscal Service, and we are pursuing those solutions. The Government’s view is that there is no place for primary legislation in this space because of the risk that it would be counterproductive. The situation that we face in Scotland in that regard is very similar to the situation south of the border.

On amendment 55, I have listened to, and am grateful for, the evidence that the committee took from individuals who testified that investigations take far too long. I know well that the time that can be taken to reach a conclusion has a detrimental effect on everyone who is involved. However, investigations can vary widely in their complexity, and it is not realistic to put a time limit on them.

The amendment sets out no consequences for a failure to meet the timescales, which could lead to the interpretation that proceedings must be discontinued if the timescales are not met. That could lead to serious conduct issues being disregarded, which would pose a risk to members of the public and fellow officers and would undermine much of the work in respect of the bill. I appreciate that Ms Dowey and Ms McNeill are seeking to resolve issues and explore matters.

Pauline McNeill’s amendment 56, like Ms Dowey’s amendment 55, seeks to set down time limits for the completion of misconduct proceedings. As I said, such proceedings can be complex and need to be considered case by case. Again, the amendment as drafted does not set out the consequences if the timescales are breached, which presents a risk that misconduct proceedings would collapse. I say respectfully to the members that amendments 55 and 56 have plainly not, from the Government’s perspective, been thought through to the appropriate conclusions, although I appreciate that they were lodged for probing purposes, as the members have said.

I know that, collectively, the committee has taken a great interest in the mental health and wellbeing of serving police officers, including those who have tragically lost their lives to suicide. I am acutely conscious of the sensitivities around what we are about to discuss in relation to the amendments in this group.

Although Mr Findlay is correct in saying that I will touch on the Lord Advocate’s powers, other aspects of policy drafting and practicalities need to be considered, too.

As we have heard, Sharon Dowey’s amendments 41 and 42 and Russell Findlay’s amendment 65 seek to insert an entirely new provision into the bill. That would significantly amend the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016 by adding to the list of mandatory inquiries under which the Lord Advocate must direct an investigation the death of a constable in certain circumstances. The matter was not raised in the committee’s stage 1 report, but I pay tribute to the committee for its care for and attention to the mental health of police officers and their loved ones, who live with the loss of a family member who has completed suicide.

There are a number of difficulties with the amendments. They would force a mandatory fatal accident inquiry to go ahead in circumstances in which there was no obvious link to misconduct proceedings, which is not what the bill is about. Under the 2016 act, the Lord Advocate already has considerable flexibility to instruct a discretionary fatal accident inquiry when they consider that the death

“was sudden, suspicious or unexplained, or ... occurred in circumstances giving rise to serious public concern, and”

when they decide that

“it is in the public interest for an inquiry to be held into the circumstances of the death.”

The decision whether to instruct a fatal accident inquiry is taken at the conclusion of a thorough investigation by the Crown Office and Procurator Fiscal Service, which is, of course, independent. As committee members will know, when the death appears to have been the result of suicide, that investigation will attempt to ascertain the reason or reasons for the deceased person’s actions. When there is evidence that ties the death of a police officer to their work, that is already a factor that will form part of the Lord Advocate’s consideration.

Amendments 41 and 42 make no distinction for cases in which the Crown’s investigation found no link between the circumstances surrounding the misconduct proceedings and the decision of the deceased person, and nor do the amendments make any distinction for cases in which the misconduct proceedings may have been only one of a number of factors behind the person’s actions. As Mr Findlay acknowledged, we must be sensitive to the multifactorial, complex and highly personal reasons for a person completing suicide.

Under amendment 41, a fatal accident inquiry would have to go ahead regardless of the support or otherwise of the family, including in circumstances in which that public forum would air extremely sensitive information that might be highly intrusive and traumatic for the constable’s family or other persons. Even the requirement that the family of the person must request the inquiry—as would be the case under amendment 42—would not solve the issue. Problems would still exist around who could request the fatal accident inquiry, when and how they would have to request it, and what would happen if close family members had different opinions on whether an inquiry should proceed. Given that, the same sort of distressing information could be publicly aired without the support of all family members.

By contrast, the current processes allow flexibility and ensure that the views of the nearest relatives about the holding of a fatal accident inquiry are always established by the Crown Office and Procurator Fiscal Service and are a relevant consideration in assessing whether it would be in the public interest for an inquiry to be held.

Amendment 65 would also cause issues because it is not limited to suicides. Many of the deaths that would be caught would, if accidental, be caught by the 2016 act anyway. If the intentional conduct of constables led to the death of a constable, that would be a highly relevant factor for the Lord Advocate to take into account when considering whether to order a discretionary fatal accident inquiry. The provision would therefore catch deaths that were caused by other constables’ misconduct but also cases in which a constable’s feelings about his own misconduct led to his death.

I therefore ask the committee to reject amendments 41, 42 and 65.

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

Amendments 5, 8 and 11 relate to the individual duty of candour inserted into the standards of professional behaviour and the organisational duty added to the policing principles. They follow the committee’s recommendation and my commitment in the stage 1 debate to bring them forward.

Those amendments will ensure that there is no doubt that constables must be candid in all investigations, regardless of who they relate to, by making it clear that the duty of candour is required in all investigations, including into all constables, all police staff and all Scottish Police Authority staff.

I turn to my amendments 7 and 10. Concerns were raised in evidence sessions about the duty of candour potentially interfering with the privilege against self-incrimination. Police Scotland requested in written evidence that the bill be amended to specify that the duty of candour applies only where a constable has been confirmed as a witness. In other words, Police Scotland wanted comfort that the duty does not apply when a person is a suspect in a criminal case, where the right to silence and the privilege against self-incrimination are protected. The privilege against self-incrimination is understood to encompass the right to silence and applies only to criminal cases.

In considering the request, I have accepted the essence of what is being asked for. I have ensured that it is done in a way that excludes only those who have privilege against self-incrimination in criminal cases, rather than anyone who is confirmed as a witness in a civil or criminal matter, which is a much wider category. If we were to make the duty of candour applicable only to those who are labelled as a witness, it would afford the right to silence to anyone not labelled as a witness, which would be counterproductive to the purpose of section 3 of the bill, which is to ensure that all officers are candid. For example, if a constable has seen an incident involving a colleague that concerns him but has not been identified as a witness and may never even be asked about the incident, the duty of candour should apply to him to require him to speak up and disclose the relevant information about what he has seen.

The amendments spell out what is already the case—namely, that the duty of candour is not unqualified but is subject to the privilege against self-incrimination in criminal cases—and I hope that the committee will support them.

I am afraid that I cannot support Sharon Dowey’s amendments 6 and 9, which propose adding to conduct regulations that the duty of candour

“does not apply to a constable who is suspected of having committed a criminal offence.”

The amendments do not provide a direct link between the subject matter of the criminal offence and the subject matter of a situation that the constable is being asked about. For example, a constable could be asked whether they saw a colleague kick a witness, but the fact that they are suspected, separately and unconnectedly, of a serious assault, would mean that they would not be subject to the duty of candour in relation to the unrelated matter. Although it could not reasonably be implied from the bill that the duty of candour is not qualified by the privilege against self-incrimination or the general protections of the law in that area, in order to ensure that there is no dubiety, my amendments 7 and 10 make that crystal clear in response to concerns that were raised in evidence at stage 1, particularly by Police Scotland.

I do not support Ms Dowey’s amendments 6 and 9 because the essence of those amendments is accomplished by my amendments, which expressly state the legal position that the existing law already achieves. My amendments do so without disapplying the duty of candour to a whole category of constables in an entirely unprincipled way, as amendment 6 would do.

I ask members to support the amendments in my name and to oppose amendments 6 and 9.

I move amendment 5.

Issues in and around misconduct in public office are salient and of high interest. I have a high regard for the work of His Majesty’s chief inspector of constabulary in Scotland and I take very seriously any and all recommendations that he makes. I have been looking into matters further, as I indicated in our earlier discussion. I am afraid that I cannot support either amendment, and I hope that, when I explain why, members will see the common sense in that at this time.

As Mr Findlay said, amendment 60 would require the introduction of a new law of misconduct in public office,

“where the person in public office is a constable or police staff”,

and for that to be done within one year of the date of royal assent of the bill that we are discussing.

As I said, I am aware that His Majesty’s chief inspector of constabulary in Scotland, Craig Naylor, called for the establishment of a misconduct in public office offence for police officers and staff who abuse their position, and that he did so in his recent annual report. Mr Naylor noted that officers south of the border can be charged at common law with committing misconduct in public office and said that there is no such offence in Scotland.

There is no legislation in England; such offences are dealt with on the basis of case law in England and Wales. The common-law offence in Scotland of wilful neglect of duty by a public official covers some of the same ground as the misconduct in public office offence in England and Wales does.

The offence south of the border that Mr Naylor referred to is not police specific. It is widely considered to be ill-defined and has been subject to criticism by the UK Government, the Court of Appeal and legal academics.

In 2012, the Law Commission for England and Wales undertook a project that culminated in the conclusion that two new statutory offences were merited to replace the common-law offence. That report was published in late 2020, but the then UK Government took no action. I note that Mr Findlay is demanding that the Scottish Government legislate on this new offence within one year, including carrying out all the consultation and engagement that would need to take place on a sensitive area, when the previous UK Government did not do that in four years in relation to its laws.

I am quite confident that I will be able to agree, at least in part, with both Russell Findlay and Rona Mackay.

As I hope members are aware, I am very keen to see body-worn cameras rolled out to help to ensure that justice is served humanely and effectively for those who interact with the police and others. That is why I ensured that there was a budget settlement this year of £1.55 billion, which includes covering the costs of the roll-out of body-worn cameras. I am aware of the updates that the chief constable has given to the committee and the Scottish Police Authority on the roll-out. I think that we all agree on the importance of body-worn cameras and what they can help to deliver.

I will, of course, want to see an evidence-based assessment of the impact of body-worn cameras; I think that that is reasonable. However, placing such a requirement in the bill is not, in my view, how that should be done. It is for Police Scotland and the inspectorate body, HMICS, to assess and audit the effectiveness of body-worn cameras when the roll-out is complete. I will ask Police Scotland to report on the effectiveness of using body-worn cameras and discuss with HMICS what plans it has to provide additional scrutiny and independent oversight. I will write to Police Scotland and HMICS on the topic after the evidence session, and I urge the committee to oppose the amendments.

Amendments 5, 8 and 11 relate to the individual duty of candour inserted into the standards of professional behaviour and the organisational duty added to the policing principles. They follow the committee’s recommendation and my commitment in the stage 1 debate to bring them forward.

Those amendments will ensure that there is no doubt that constables must be candid in all investigations, regardless of who they relate to, by making it clear that the duty of candour is required in all investigations, including into all constables, all police staff and all Scottish Police Authority staff.

I turn to my amendments 7 and 10. Concerns were raised in evidence sessions about the duty of candour potentially interfering with the privilege against self-incrimination. Police Scotland requested in written evidence that the bill be amended to specify that the duty of candour applies only where a constable has been confirmed as a witness. In other words, Police Scotland wanted comfort that the duty does not apply when a person is a suspect in a criminal case, where the right to silence and the privilege against self-incrimination are protected. The privilege against self-incrimination is understood to encompass the right to silence and applies only to criminal cases.

In considering the request, I have accepted the essence of what is being asked for. I have ensured that it is done in a way that excludes only those who have privilege against self-incrimination in criminal cases, rather than anyone who is confirmed as a witness in a civil or criminal matter, which is a much wider category. If we were to make the duty of candour applicable only to those who are labelled as a witness, it would afford the right to silence to anyone not labelled as a witness, which would be counterproductive to the purpose of section 3 of the bill, which is to ensure that all officers are candid. For example, if a constable has seen an incident involving a colleague that concerns him but has not been identified as a witness and may never even be asked about the incident, the duty of candour should apply to him to require him to speak up and disclose the relevant information about what he has seen.

The amendments spell out what is already the case—namely, that the duty of candour is not unqualified but is subject to the privilege against self-incrimination in criminal cases—and I hope that the committee will support them.

I am afraid that I cannot support Sharon Dowey’s amendments 6 and 9, which propose adding to conduct regulations that the duty of candour

“does not apply to a constable who is suspected of having committed a criminal offence.”

The amendments do not provide a direct link between the subject matter of the criminal offence and the subject matter of a situation that the constable is being asked about. For example, a constable could be asked whether they saw a colleague kick a witness, but the fact that they are suspected, separately and unconnectedly, of a serious assault would mean that they would not be subject to the duty of candour in relation to the unrelated matter. Although it could not reasonably be implied from the bill that the duty of candour is not qualified by the privilege against self-incrimination or the general protections of the law in that area, in order to ensure that there is no dubiety, my amendments 7 and 10 make that crystal clear in response to concerns that were raised in evidence at stage 1, particularly by Police Scotland.

I do not support Ms Dowey’s amendments 6 and 9 because the essence of those amendments is accomplished by my amendments, which expressly state the legal position that the existing law already achieves. My amendments do so without disapplying the duty of candour to a whole category of constables in an entirely unprincipled way, as amendment 6 would do.

I ask members to support the amendments in my name and to oppose amendments 6 and 9.

I move amendment 5.