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 the 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—

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.

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 specific 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 pleased that some of the amendments in the group about the publishing and protection of the advisory and barred lists set out what the Scottish Government intended to do in regulations. I confirm to the committee that, as narrated by Ms Dowey, I support amendments 18, 20 and 22 to 24.

Amendment 17 sets out that the Scottish Police Authority, HMICS, Police Scotland and the Police Investigations and Review Commissioner are required to

“consult the advisory list and barred list before employing or otherwise appointing a person”.

I can only support that as long as the power to add to those lists is not removed by amendment 21. I oppose amendment 21 because it would remove the flexibility of being able to add further organisations to those lists as appropriate. Therefore, I urge members to vote against amendment 21 if it is moved and pressed, although I appreciate Ms Dowey’s early indication that she does not intend to do that.

I oppose amendment 16, which would do two things in the bill, rather than through a regulation-making power. First, it prohibits the SPA from publishing the advisory list. Secondly, it sets out that the SPA

“must take steps to ensure that information ... which is included in the advisory list is not made publicly available.”

The Scottish Government’s intention has never been to require the publication of the advisory list, and those in charge of the list would need to have the proper data protection measures in place to comply with current and future data protection law. I cannot support amendment 16 because it is not clear what steps the SPA would be required to take or what is meant by “publicly available”. Amendments 22 and 23, which I support, would prevent the publication of information on the advisory and barred lists and achieve the same aim in a more cohesive way. I urge the committee to reject amendment 16.

I also oppose amendments 19 and 59 and I urge the committee to reject them. The bill sets out automatic conditions for entry on the advisory list or the barred list. Allegations of gross misconduct warrant being included in the advisory list, and a finding of gross misconduct warrants being included in the barred list. As there is not a decision to place a person on the barred or advisory lists that can be reviewed, I oppose amendment 19, which provides for a right of review of a decision to place a person on one of the lists.

Where amendment 19 is even more problematic is in qualifying the right to a review by reference to the person’s engagement with disciplinary proceedings. Amendment 59 makes the same qualification in respect of disciplinary proceedings that

“have not concluded when the person ceases to be a constable”.

Both amendments would require legislation to set out a test as to what constitutes engagement with disciplinary proceedings, which would be extremely difficult to achieve without leaving the provision open to abuse. As the committee will note, the test is not set out in the amendments and therefore needs to be thought through. I urge members to oppose amendments 19 and 59.

I reiterate that I am more than happy to work with Katy Clark and Sharon Dowey in advance of stage 3.

On the concerns about the phrase “lesser obligation”, the code must be compliant with the Equality Act 2010. However, amendment 48, which seeks to add that legislation as a source for the code’s preparation, would mean that the code needed to only “have regard to” the 2010 act, which would impose a lesser obligation than is already implied. I am happy to continue to discuss matters with members.

As for Ms Dowey’s and Ms McNeill’s points on consultation, it is crucial that there is clarity for the chief constable when it comes to consulting individuals or bodies that are able to represent people who have had direct experience of the complaints process, for example. The issue is how that can be done in a way that taps into a breadth and depth of experience, such as that of victim support organisations and perhaps others, but does not place an unworkable condition on the chief constable to consult every individual who has ever had an experience or who has ever represented someone who has had a very difficult experience. I am positive that we can work our way through those issues.

The European code of police ethics covers, for example, the rights of suspects, of witnesses and of victims; it places wider obligations on policing bodies and covers a range of other matters. I would be happy to provide in writing further detail on the UN codes, the UN basic principles and the code of police ethics.

We will do everything that we can to build consensus, but sometimes we must stick to our principles with a view to making progress. If we were to step back from what HMICS has recommended and the progress that the committee is looking for, that would be a step backwards, as opposed to a step forward.

It was very remiss of me, Mr Findlay, not to address the issue that you raised around whistleblowers. I agree that whistleblowers must be carefully protected, but the way to do so is by the application of whistleblowing protections, which sit elsewhere, and not by diluting vetting requirements.

I am happy to discuss more of that going forward, prior to stage 3.

I appreciate that people have seen the amendments only for a week, but that is the nature of our parliamentary process. It will cause us all to have to work hard and be somewhat testing.

The only thing that I would add is that, in all sincerity, I will continue to engage with members and stakeholders at an early opportunity.

I am conscious, Ms Dowey, that I must ask to intervene on you to answer Mr Findlay’s question, which is a bit odd.

I understand the issues and the care that members have taken in this area. For me, the bottom line is that there are various views about the scope of fatal accident inquiries. As a constituency MSP, I have looked closely at the matter, not in relation to police officers but in respect of the complexities of deaths abroad. I have looked at the coroners’ system in England, and the differences there are not quite as stark in practice. Although the systems look a bit different on the surface, I think that neither system always delivers the outcomes that grieving families would wish for.

There are two issues. I do not want to sound clumsy or disrespectful, but there is no short route to changing the process of fatal accident inquiries through the back door or through another bill. That would be a less than complete or satisfactory way to address matters, because the area would require much more in-depth consultation and scrutiny.

Tragedies happen in many professions—people who work in the health service take their lives and I have certainly known a number of social work colleagues who have taken their lives. Suicide stretches far and wide and it will have touched everyone in this room in some shape or form. We could get into unforeseen difficulties through the very understandable desire to address the issue that is related to serving police constables, which might create less than satisfactory outcomes because we are not looking at it in the context of a wider review of fatal accident inquiries. I am cognisant that many other professions stand in the line of duty and that the mental health of those professionals also suffers. My view remains the same—the issue is much wider.

Irrespective of one’s views on the merits or otherwise of the current legislation, what is suggested is a much bigger piece of work than can be done by trying to rectify matters by making amendments to a specific bill. I say that with respect. I am very conscious that this matter cuts to the core—it cuts deep—for many families.

There are complicated questions in relation to application and scope, so I will probably require a bit of consultation with legal officials and will come back to you in writing on what I have not answered.

On the phrase “reasonable assertion”, the privilege against self-incrimination can be properly invoked only when the person is suspected of a criminal matter. It can be invoked only if warranted and not if the person is not actually suspected of a criminal matter.

We will follow that up.