Chamber and committees

The amendments in group 3 respond directly to the recommendation that was made by His Majesty’s Inspectorate of Constabulary in Scotland to ensure that there is a requirement for all constables and staff to obtain and maintain vetting, as well as to ensure the power to dismiss should they be unable to maintain vetting. The committee also recommended that and, during the stage 1 debate, I committed to lodge amendments on the issue.

The public rightly expect the police workforce to act with integrity and professionalism at all times. The amendments will ensure that all police constables and staff will have to go through a regime of on-going vetting that will continue throughout a person’s professional life, rather than ending at recruitment. Currently, only constables and staff in specific roles undertake regular revetting.

Under the amendments, the chief constable must develop the necessary elements for a robust regime, including vetting periodically and where there is reason to revet, dismissal and entry on to the barred list as appropriate. By requiring a statutory vetting code of practice for constables and police staff, and a new regulatory regime for constables in particular, we can be confident that Police Scotland will have an effective scheme that requires constables and police staff to maintain vetting clearance. The amendments clarify that, where clearance cannot be maintained, there is a route to dismissal.

I will take the amendments in turn. Amendment 43 introduces a new chapter on vetting into the Police and Fire Reform (Scotland) Act 2012, including proposed new section 36C, which sets out what the vetting code of practice “must” include and what it “may” include. The code must include provision for on-going vetting of staff periodically and with reason, and for dismissal to follow where appropriate. Although the duty to prepare the code lies with the chief constable, there is a duty to “involve” the SPA in the preparation of the code, and the SPA “must” assist the chief constable in that regard. The code may also set out additional detail about on-going vetting, which will apply to both staff and constables, to encourage a coherent overall picture for all who are involved in the policing of Scotland.

Proposed new section 36D of the 2012 act sets out how the code will be prepared, including that it must be fully consulted on with His Majesty’s Inspectorate of Constabulary in Scotland, staff associations, trade unions and minority staff networks before the code is published. Section 36D also requires the chief constable to review the code at least once every five years to ensure that it is current and up to date, and to revise it if necessary.

As the committee is aware, police staff are employees of the SPA, which is responsible for setting their terms. The chief constable has the power to dismiss staff under section 21(3) of the 2012 act, and dismissal for a failure of contractual vetting would be a potentially fair reason for dismissal in terms of general employment law. However, police staff are under the ultimate direction and control of the chief constable. With such a code of practice, she would be able to ensure that staff will undergo vetting periodically, can be revetted if a reason to do so arises, and can be dismissed for a failure of vetting where appropriate.

Amendment 44 introduces a regulation-making power, via a new section 50A of the 2012 act, to make similar provisions for constables as the code will make for staff. The Scottish ministers must lay regulations that provide for the vetting of police constables periodically and if a reason for a review is identified. Those regulations must also provide for the dismissal and demotion of constables where appropriate. A regulation-making power is required because police constables are office-holders, not employees, and their terms and conditions are set out in regulations.

Following the dismissal of a constable for being unable to maintain vetting, it is important that they are unable to gain employment in policing across Great Britain. Amendments 45 and 46 enable a police constable who is dismissed following a failure to maintain vetting to be added to the barred list. That enables other policing bodies to be made aware of the risk that is associated with the individual. The amendments make the treatment of a dismissal for vetting under the barred list equivalent to that of a dismissal for misconduct. That recognises that there is an equivalent need for others to be alerted to the risk that is posed by those who cannot maintain vetting clearance.

We expect legislation to be brought forward that will place police officers in England and Wales on the barred list there if they cannot maintain vetting, so amendments 45 and 46 will provide a consistent approach to vetting across Great Britain. I hope that members will agree that those amendments are pragmatic and right in principle, and I urge members to vote for them.

Amendment 47 updates the long title of the bill to ensure that it encompasses the new provisions for vetting, the need for which is reflective of the significance of the provision for a new vetting regime. The amendment does not affect the short title of the bill, which remains the Police (Ethics, Conduct and Scrutiny) (Scotland) Bill.

The amendments are an important addition to the bill and will provide the chief constable with the ability to have a robust vetting regime that will examine the on-going suitability of serving constables and police staff and dismiss those who might pose a risk to the police service. I hope that the committee will agree with and support the amendments.

I move amendment 43.

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.

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 into 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.

Good morning. I will first speak to amendments 1 and 2, which will add further sources that the chief constable must refer to when preparing the code. That follows evidence that was given to the committee and a committee recommendation.

The bill as drafted sets out sources of police ethics to which regard must be had in preparing the code, including the standards of professional behaviour, the constable’s declaration, the policing principles, convention rights and any other human rights instruments that have been ratified by the United Kingdom. Those sources are to assist the chief constable in preparing the code.

The rights and obligations under the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 are an important source, because they now have the same domestic status as rights under the European convention on human rights. I thank the Children and Young People’s Commissioner Scotland for suggesting that we add that.

I am grateful to Amnesty International for its suggestion that Police Scotland’s code of ethics should reflect the European code of police ethics. I believe that that will be a valuable source to consider when preparing the code of ethics, so my amendment 1 adds it to the list.

The UN code of conduct for law enforcement officials and the UN basic principles on the use of force and firearms by law enforcement officials are further worthy sources of police standards that will add value to Police Scotland’s code of ethics. I urge the committee to support amendments 1 and 2.

Before I turn to Katy Clark’s amendment 48, I will speak to amendment 3. The bill lists mandatory consultees that the chief constable must consult when drafting the code of ethics. Following evidence from human rights organisations, my amendment 3 will add to the list the Scottish Human Rights Commission and the Equality and Human Rights Commission. I agree with the evidence of Amnesty International that the mandatory consultees should include the Scottish Human Rights Commission. That commission will add value to and enhance the content of Police Scotland’s code of ethics.

The Equality and Human Rights Commission told the committee about the positive impact of embedding the consideration of equality in the code of ethics. I believe that the commission will provide valuable advice as consultees and—importantly—could highlight where the code could better reflect the Equality Act 2010. That would strengthen the capacity for Police Scotland to deliver on its equality, diversity and inclusion and human rights aspirations.

Adding those bodies to the list will ensure that they comment on the code, and that is a stronger measure than using the 2010 act as a source, which is what Katy Clark’s amendment 48 seeks to do. I now turn to that amendment.

The chief constable is already legally obliged to comply with her duties under the 2010 act, by virtue of the terms of that act. To add the 2010 act to the list of sources for the code would impose on her a lesser obligation than already exists and would create confusion and legal risk. I believe that my amendment 3 is stronger and would not interfere with the structure of the chief constable’s duties under the 2010 act.

Katy Clark’s amendment 49 is about the reporting obligation on the chief constable to make a statement if, following a periodic review of the code, there are no changes to make. The amendment would require the chief constable to set out details of changes that were suggested but rejected during the review.

The bill already provides that the chief constable must lay a statement before the Parliament if she has concluded that there is no need to revise the code after a review has taken place. I understand the need to assure both officers and the public that the code is keeping pace with ethical standards, but I am concerned that amendment 49, as lodged, might have unexpected consequences, such as publishing comments or information—for example, from private individuals—that were not intended to be made public.

I would like to understand more about Katy Clark’s intentions and purpose ahead of stage 3, to see whether we can find a way to meet her objectives while avoiding unintended consequences. I urge the committee not to support amendments 48 and 49.

Sharon Dowey’s amendment 4 relates to whom the chief constable must consult and share a draft with when preparing the code. The list is set out in the bill and includes people and organisations with relevant knowledge or expertise, such as staff networks that represent particular minority groups.

I welcome amendment 4 in principle. It would require the chief constable, when preparing the code of ethics, to consult those who are

“representative of individuals who have made a complaint against the Police”.

That would allow for people with direct experience of the complaints system to input into ethical policing. However, although I believe that the principles of amendment 4 would enhance the code, the wording does not make it clear that it is the voices of complainers as a group that must be heard, rather than those of individual complainers, which might make the measure ineffective or have unintended consequences, such as hampering preparation of the code. To ensure that the provision can be effective, I ask Sharon Dowey not to move amendment 4, and I commit to working with her to bring it back at stage 3.

Sharon Dowey’s amendment 50 proposes to insert a new, free-standing section to place a duty on the chief constable to review—for consistency with the code of ethics—

“the policies, procedures and guidance that relate to discipline and conduct”

and to make any changes that are identified

“within one year of Royal Assent.”

The duty on the chief constable is to prepare the code

“as soon as is reasonably practicable after section 2 of the ... Act ... comes into force.”

Even once the duty commences, a great deal of work will be involved in preparing and consulting on the code, so it makes no sense to have a requirement to complete a review within a year of royal assent. That period could have ended before the code was published.

In addition, on-going work will lead to substantial change in the policies, procedures and guidance that relate to discipline and conduct. All the recommendations that Dame Elish Angiolini made in her independent review that do not require legislative change are in the process of being implemented, His Majesty’s Inspectorate of Constabulary in Scotland’s assurance review of conduct is on-going and there will be new conduct and vetting regulations, as well as all the other work that will have to be done as a result of the bill. A review that took place before those changes had been made would quickly become entirely redundant.

It is essential that the code of ethics does not become a disciplinary code by the back door, so no amendment should be worded in such a way that it risks conflating the code with the standards of professional behaviour. However, I agree that the discipline and conduct policies, procedures and guidance and the code should form a coherent body, so I am willing to work with Sharon Dowey ahead of stage 3 on the issue. I urge her not to move amendment 50 and, if she moves it, I urge the committee to vote against it.

I move amendment 1.

On the types of offences related to misusing public office, there is a live discussion across the UK right now, for various reasons that cut across the Hillsborough tragedy and, in health, the infected blood scandal. I will say a little bit more about that in speaking to later groupings but, in short, we are waiting to hear about more detailed proposals from the UK Government. We are alive to those matters and want to engage with them constructively.

The bill sets out what is meant by “candour”. I remind colleagues that standards of professional behaviour apply to officers who are off duty, so the duty of candour also applies to officers when they are off duty. In health, the legislation is based more on a duty of candour on organisations and not on individuals. Colleagues will recall that, in relation to the bill, we extensively debated the point that there is an individual duty of candour on constables because of the nature and importance of the role that they fulfil in our society.

I understand that there may be rules for individual doctors—for example, via their professional bodies. I am not in a position to talk in detail about that, but the duty of candour applies to constables only in legislation. The understanding is that it could be applied to staff via terms and conditions.

I am happy to write to the committee and Ms McNeill in more detail.

It is new in regard to the power to dismiss. That is the bit that is missing.

I think that, for the third time, I can give that assurance. I am delighted to do that. As always, my door is open.

Ms Dowey’s amendments 12 and 14 go some way towards doing that. In an ideal world, you would want to set out a hard-and-fast requirement to achieve the complete resolution that you seek, but, as you acknowledge, setting that out in legislation is really difficult to do.

I remind members that amendments 12 and 14 would put in the bill what would otherwise have been in regulations—namely, they require there to be a time limit and that the inclusion of a public interest test in the criteria for the time limit be disapplied if that is appropriate. I have yet to be convinced or see workings that would convince me that we could go further than that at this time.

Amendments 15, 57 and 58 would introduce an unqualified power enabling the chief constable to dismiss a constable if the chief constable considered that the constable had unacceptably failed to adhere to the standards of professional behaviour or to the code of ethics. As such, those amendments must be resisted. Fundamentally, such a power is deeply unfair and would be highly vulnerable to challenge. It would allow the chief constable to remove a constable’s ability to earn a living without a fair process, without recourse to a legally constituted court or tribunal, and without notice. There is no equivalent provision across the UK in any profession or office, and it would be unprecedented in any modern rights-compliant legal system. As the member acknowledged, there has not been any consultation on, or evidence provided on, that specific proposal, so I put it to the committee that there is absolutely no foundation for this substantial change to the bill.

My officials are in discussions with the Scottish police consultative forum on the conduct regulations and are considering ways in which misconduct hearings can be progressed more quickly, which will likely include a fast-track process for the dismissal of a constable in certain defined circumstances. However, that would still provide the constable with a right to be heard, a right to appeal and a right to have representation, as is the case with the accelerated misconduct hearing process in England and Wales.

Amendments 26 to 29 would fundamentally change the policy intention behind this section of the bill, which is about senior officers. Again, I say to the committee that the amendments should be resisted.

The reason that section 8 applies only to the dozen or so existing senior officers is that the intention is that their cases will be heard by an independent panel. Widening out access to a full re-hearing before the Police Appeals Tribunal for the many thousands of constables for all sanctions, no matter how minor, would have very serious implications for the functioning of the PAT. It would also be entirely unjustified as a matter of principle. There are sufficient appeals mechanisms in place to allow constables to appeal all disciplinary actions, and it is excessive that a constable should, for example, be able to appeal a written warning at a complete re-hearing before the PAT.

I oppose amendment 30 because I believe that suspension should be considered case by case and that there should be no avenue for automatic suspension of constables, which amendment 30 would allow by implication. I know that Police Scotland takes its responsibilities on suspension seriously. Conduct regulations currently limit the ability to suspend a constable to situations in which they might prejudice a misconduct or criminal investigation or in which it is in the public interest to do so. The amendment assumes the existence of an automatic suspension and, by implication, permits it. That would be quite a startling departure, and it would be strenuously opposed by stakeholders.

Amendment 31 would insert a requirement for constables to be notified as soon as an investigation into their misconduct had been commenced. What Sharon Dowey is proposing is already provided for in the regulations and would not add anything other than possible confusion, given the lack of clarity in the drafting as to what is meant by the words “investigation commenced”. I have concerns about providing notice prior to an investigator being appointed, because, at the early stage, there may be a risk of prejudicing the investigation if the subject is informed before evidence is secured.

I ask that amendments 12 and 14 be supported, for the reasons that I have set out. I ask Sharon Dowey not to press amendments 13 and 53, and I ask the committee to oppose all the other amendments in the group.

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

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.