Chamber and committees

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.

No, thank you. I think that I have done my winding up.

Amendment 1 agreed to.

Amendment 48 not moved.

Amendment 2 moved—[Angela Constance]—and agreed to.

Amendment 49 not moved.

Amendment 3 moved—[Angela Constance]—and agreed to.

Amendment 4 not moved.

Section 2, as amended, agreed to.

After section 2

Amendment 50 not moved.

Section 3—Duty of candour

I appreciate that.

The short answer is that, as members will know, vetting currently happens. The HMICS assurance review spoke highly of the progress that has been made on vetting and said that it is of a high quality. However, the provisions in the regulations are missing the power to dismiss. If we want to, as I believe the committee does, empower the chief constable to have that power to dismiss, that is what we must try to address.

No. The purpose of stage 2 is to make progress prior to stage 3. Given the breadth and depth of the work, I think that leaving it all to stage 3 would be somewhat foolhardy and not common sense.

I am not trying to be awkward or disrespectful. I am trying to acknowledge the frustrations. Officials have engaged with all the parties. I accept that there are always differences of opinion. We are in a process between stage 2 and stage 3. I am trying to make two points, the first of which is that I do not think that it is wise to leave all this to stage 3. In response to the committee, I gave an undertaking in good faith and made a commitment to the Parliament. If the committee, which has followed the bill in great detail, is dissatisfied with this amendment at stage 2, I can only imagine that the Parliament would be less than satisfied at this all coming forward at stage 3. I am not disputing that there will be work for us all to continue to pursue and engage in. However, His Majesty’s Inspectorate of Constabulary in Scotland did the work and made a recommendation, which is, ultimately, what I am responding to.

The committee’s stage 1 report highlighted the proposal from HMICS for the PIRC to have the power to refer particular matters to HMICS in this area. I believe that Sharon Dowey’s amendment 39 might assist in that by adding a specific duty on the PIRC to consult HMICS, which will provide a solid foundation to establish roles and working relations in relation to the PIRC’s new role of carrying out reviews of practices or policies of the Scottish Police Authority, the chief constable or Police Scotland. The amendment will also allow an opportunity for both parties to consider who is most appropriate to carry out such a review. I am therefore supportive of amendment 39.

However, I am sorry to say that I cannot support Ms Dowey’s amendment 40, which would add a requirement for the PIRC to assist HMICS with any work that is related to such a review. The amendment is unnecessary as there is existing legislation that requires the PIRC and HMICS to collaborate. Section 46 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 already provides an information-sharing gateway to allow the PIRC to pass information to HMICS, should that be necessary to allow HMICS to carry out its work. Furthermore, under section 85 of the 2012 act, the PIRC and HMICS have a duty to co-operate and co-ordinate activity with each other to improve how they carry out their functions and to work together to prevent any unnecessary duplication, and a memorandum of understanding is in place to help to bring that into effect.

I am informed that the PIRC is not supportive of amendment 40, for the aforementioned reasons. I therefore urge the committee to oppose amendment 40.

I will come on to talk about some of the broader reasons and the broader landscape in a way that I hope will be helpful.

I am aware that the new UK Government is considering a new offence, which will apply to all public officials. Members might wish to note that the Law Commission’s recommendations include several categories in the list of public office holders, which go well beyond policing roles.

I will give a bit more detail. The UK Government is considering that the offence would apply not just to the police. It would include, but not be limited to, Crown servants, including ministers of the Crown; any person employed in the civil service of the Crown; any constable and any other person employed for the purposes of any police force; elected officials and their employees; and members of Parliament. The question that we could be challenged with is why we are starting with the police and not the politicians. Broad consideration is therefore being given to the matter at the UK level, and the Scottish Government will engage with that as appropriate.

If the offence was to be created under the bill, it would apply to constables only, which would result in piecemeal legal reform and would single the police out as the only public office holders that the provision should apply to, when a principled view would suggest that other holders of public office should be equally liable for misconduct. As I said, my officials will work with UK Government officials on the topic.

Amendment 61 would require the Scottish ministers to report on misconduct in public office within one year of royal assent, and particularly on whether there should be a statutory offence of misconduct in public office for the police and, if so, what steps would be taken to introduce it. In my view, that is not the way to make the legislation, because it could, in theory, cut across a whole range of public offices. The police might also rightly raise the question of why we were singling them out.

In all fairness, there is much to be done in this area, following a series of inquiries and reviews. However, the amendments are using a specific bill about the police to seek to enact piecemeal and knee-jerk change, rather than having a proper consultation and consideration and taking a mature and co-ordinated approach to law reform in this area for all public office holders. I therefore urge members to oppose Mr Findlay’s amendments 60 and 61, but I appreciate his interest in the area, because I think that it is important for standards in public life.

Sometimes amendments are small and sometimes they are large, but, if it is of any interest, it will be the same as it is in England and Wales.

When I met Kate Wallace again last week, she spoke directly to me about the importance of the information-sharing agreement. I have stressed to my officials that both the information and the agreement are of pivotal importance. Our approach to it has been shaped by the law, including the general data protection regulation, and by existing information-sharing arrangements. It is a fairly complex piece of work.

Prior to coming to the committee today, I was clear that it was really important that a package of detailed information was available, both on the guidance for the governor’s veto and the accompanying operational standards and on the draft information-sharing agreement. I appreciate that the committee is very busy, and that we are working at pace with regard to emergency release. I appreciate, too, that that causes anxiety for victim support organisations, but the nature of the terrain that we are currently operating in means that we have to take emergency action.

It might be useful for me to talk about the decision-making process on emergency release. Members will be aware, because some of the correspondence was shared with the committee, that in the first week of May I received correspondence from His Majesty’s chief inspector of Prisons for Scotland, the Prison Governors’ Association, the SPS advisory board and Ms Medhurst herself. I could not ignore that correspondence. I had further discussions with Ms Medhurst and Cabinet colleagues, and the decision to pursue this course of action with Parliament’s consent was approved at Cabinet in the few days before I made my statement to Parliament.

I have always been clear that there is no magic bullet; there is no single solution that will provide a more sustainable prison population. Scotland, like the rest of the UK, is completely out of kilter with comparable jurisdictions. I have had views on the issue all my adult working life. It should be addressed, because it is not in the interests of public safety to have a very high prison population, particularly when things get to a critical point at which critical risks are posed by that very high population.

I indicated in my earlier answer to Mr Findlay that I discuss a range of issues with all justice partners. Shifting the balance from use of custody to use of robust community disposals is evidence led, and it is the right thing to do in many instances. However, we need to be focused on remand. There is work going on around a new partnership with the voluntary sector, which is about doing more, particularly for short-term prisoners, through voluntary aftercare.

I have already spoken about my strong desire to pursue different arrangements for long-term prisoners. We will make a Scottish statutory instrument on home detention curfew to enable people to spend longer on home detention curfew, in which people are licensed and tagged under a curfew. We have also spoken about better use of technology—using GPS, for example. We continue to expand supervised bail and electronically monitored bail, both of which are at record high levels. They might be at record-high levels, but we still need to do more.