Chamber and committees

Deepfake abuse has been described as a “new frontier” of violence against women. The proliferation of sexually explicit deepfake images has grown at an alarming rate and is causing devastating harm to victims. #MyImageMyChoice, which is a campaign group that tackles image abuse, has found that 99 per cent of deepfake images are of women and girls.

One of the most unsettling features of that abuse is that it is often people who are known to the victim who are creating and sharing the images. Teenage girls have found that their classmates are using apps to transform their social media posts into nudes before sharing them. I have raised the issue before, so I am pleased with the First Minister’s answer. Does he agree that there is now urgency to close any loopholes in the law in Scotland by working with the United Kingdom Government, which is doing the same? As I said, it is the sharing of images that is illegal, so we need to close that gap. Does the First Minister agree that we, as a Parliament, and the Scottish Government need to send a clear message that dealing with that type of abuse is part of the campaign to eradicate violence against women and girls?

I thank the cabinet secretary for advance sight of the statement, which I found helpful.

This must be a turning point for Scotland’s prisons. Our system lacks accountability and transparency when there are deaths in custody. Sadly, there have been more deaths since the tragic and preventable deaths of Katie Allan and William Lindsay Brown.

Now is the time to adopt all the recommendations, which the Government has done, and to go beyond them and use them as the basis for whole-system change. For too long, the prison system, which we trust to look after people on behalf of the state, has let down families. They have been immediately shut out of a system whose first response is to defend its own interests.

Communication to families immediately after the death of their loved one has been poor. The unfettered access to information following a death in custody that families were promised by His Majesty’s Inspectorate of Prisons for Scotland in its recommendations is meaningless, unless those families have rights to their own representation.

I have one specific question. Will the cabinet secretary commit to legal aid support for all families in the first 24 hours following a death in custody so that they have a chance against the system when it comes to asking immediate questions about the circumstances of the death of their loved one? Families tell me that they feel closed out of the system during the first period after a death in custody, and such a move would go a long way to making sure that we have whole-system change.

Scottish Labour believes that we must act to ensure the highest standards in our police force. The power held by police officers and police organisations requires the right structures and standards to ensure that we can have confidence in our policing. Measures in the bill seek to introduce robust mechanisms to address unacceptable conduct and behaviours of a minority of police officers and staff.

I, too, thank all the witnesses and the victims who spoke up and gave the Criminal Justice Committee first-hand evidence of how police processes can impact on their lives. I also thank my colleagues on the committee, the bill team and our clerks, who worked very hard to produce a constructive stage 1 report.

The bill cannot be viewed in isolation and is only part of a wider piece of work that must be done to improve police complaints and conduct systems. The code of ethics and the duty of candour will not have any particular legal effect, but they set out the expectations. There was quite a lot of debate on those, particularly from victims organisations such as Victim Support Scotland, which wants the code to be more transparent and publicly available, and wants there to be consequences of breaches. However, we are clear that the code of ethics should be robust and reflect the challenges of modern policing. In its report, the committee asked to be able to review the draft code.

Separately from that, there is the duty of candour, which is a standard requirement to assist in investigations. The duty is different to following any other duty or order; it is fundamentally of a more serious nature. Some witnesses advised caution on whether the duty of candour will extend in circumstances in which officers are off duty, but during the legislative process it has been made clear that it will do. However, that will not cut across the right of an accused person, whether they are a police officer or a member of police staff, not to self-incriminate in criminal inquiries. It is fair to put on the record that the Scottish Police Federation’s view was that a duty was not necessary as, in any case, 99.9 per cent of officers co-operate when asked to do so during the course of any inquiries.

One of the critical matters for both the Criminal Justice Committee and Scottish Labour was the financial memorandum. We could not have supported the bill if the Government had not corrected it. As early as this morning, we heard again from the PIRC, who reiterated that the financial implications of legislative decisions are important to consider. The PIRC remains opposed to taking on the responsibility of presenting cases against senior officers, not just from a financial point of view but in terms of the process itself, because they do not think that they should be “judge and jury”.

There are still things in the bill that are problematic, but because there are elements that we support, we will support it this evening. I hope that we can get a full update later in this session of Parliament on how it is proceeding.

One of the biggest issues with the bill is that it is not transformative in the way that the public might have liked. I do not know whether the public will notice any real difference in the handling of complaints, nor will the bill allow any new avenues for victims’ families to raise concerns about police inquiries. I have raised the specific question of the Emma Caldwell inquiry; if a family had some concerns about the avenue being pursued by the police, there is not really a route for that. It is pretty clear that there is a lot of work to be done.

The introduction of the barred list is an important aspect of the bill. It seems like a lifetime ago that the Criminal Justice Committee examined the issue of the length of time that cases involving police officers take to come to court. The committee did a good job of trying to thrash out why that was the case. I had a good session with Lady Elish Angiolini about the issue, which I think is contained in the stage 1 report, and I hope we have come to a conclusion on it.

The criminal allegations against the police division in the Crown Office—known as CAAPD—which is responsible for the investigation of criminal complaints, has said that it expects to

“progress and conclude 75 per cent of the cases that are reported to us within six months”.—[Official Report, Criminal Justice Committee, 15 May 2024; c 42]

Let us see whether that happens.

Although we have introduced new provision to pursue officers after they have left the service, I fully supported Sharon Dowey’s important amendments to ensure that the timescale for doing so is not completely open ended.

I will not reiterate what I said earlier about the vetting provisions that apply to police officers and staff, but I emphasise the fact that we agreed in our stage 1 report to the chief constable having the power to dismiss officers and staff who do not maintain their vetting before we had sight of the detail of the vetting provisions. Who knows what view we might otherwise have taken of that power? Because the chief constable now has that power under the new vetting provisions, we need to be clear that there is balance and fairness in the system.

It is important that the Government accepted my amendment 17 on written reasons, because it will provide substantial fairness for police officers who think that they should get to know why their vetting has been refused. As I said when we considered the grouping on vetting, my only remaining concern relates to the fact that we need to be clear, in principle, that there should be a right of correction or appeal.

I took a lot from what the cabinet secretary said about the discussions that we expect to take place between the police organisations and representatives of the police unions and staff. I hope that, in those discussions, we can thrash out something that everyone feels is a fair conclusion.

Does the existing statutory appeals provision apply when an officer has already been dismissed and appeals the dismissal? In my amendments, I am trying to get at the fact that people should at least have a right to rectify any information that might be wrong and has led to their failing their vetting and their possible dismissal.

The cabinet secretary referred to the regulations. Would there be scope to ensure that the regulations included something that an officer could use to correct misinformation in relation to vetting?

Sure—of course I will.

I was going to get to amendments 16 and 17. I fully welcome the Government’s position on them, as it will make a substantial difference in relation to fairness. I welcome the Government’s response.

I remain concerned about not having something in primary legislation on correcting information on vetting, but I am content for the most part. The only amendment in the group that I intend to move is amendment 14, on appeals; I will not seek to move the other amendments in my name. I thank the Government for the response on amendments 16 and 17.

Amendment 12, by agreement, withdrawn.

Amendment 13 not moved.

Amendment 14 moved—[Pauline McNeill].

This group contains a number of amendments, so I will try to be concise and clear. I believe that we require a proper vetting process that will give the public confidence in policing and in Police Scotland officers, and Scottish Labour is clear that we support the vetting provisions and their modernisation.

Police Scotland carries out checks and manages all levels of police vetting. It has an administrative role in managing national security vetting, with the process being undertaken on Police Scotland’s behalf by the Scottish Government. Currently, vetting includes recruitment vetting, which is the minimum level that is required for applications from all those who are seeking appointment as police officers or employment as members of staff in Police Scotland; management vetting; and vetting for a designated post.

HM Inspectorate of Constabulary in Scotland conducted a review of vetting policy and procedures in Police Scotland in 2023, and those new vetting provisions were inserted in the bill at stage 2 without adequate consultation with those with an interest, such as the Scottish Police Federation, staff trade unions and the Association of Scottish Police Superintendents. My amendments in the group seek to delete the vetting provisions, but I make it clear that I am probing the Government on the issue and inviting it to respond, particularly with regard to the lack of scrutiny of the provisions. That is my intention.

The Government indicated at stage 1 that it was considering putting vetting on a statutory footing. The Criminal Justice Committee’s stage 1 report refers, on page 56, to a letter from the cabinet secretary in which she said that she was

“exploring the legislative basis for vetting, particularly in the context of the Police (Ethics, Conduct and Scrutiny) Scotland Bill”.

The stage 1 report also refers to the “HMICS Assurance review of vetting policy and procedures within Police Scotland” report, which said:

“The Scottish Government should place into legislation the requirement for all Police Scotland officers and staff to obtain and maintain a minimum standard of vetting ... and the provision for the Chief Constable to dispense with the service of an officer or staff member who cannot maintain suitable vetting”.

I thank the cabinet secretary for her thorough response and for acknowledging that, at this stage, I am seeking to go over the provisions with a fine-toothed comb to ensure that there is fairness and that there is reasonable application of something that the Parliament did not get a proper chance to discuss at stage 2.

The cabinet secretary is quite correct to say that, in our stage 1 report, the committee asked for the chief constable to have the power to dismiss an officer or a member of staff who was unable to maintain their vetting. However, the proposals that we are discussing now came after the stage 1 report. For my part, had I had the detail at stage 2, I might have taken a different view—or maybe I would not have. I make the point that I supported the stage 1 report for the reasons that I have mentioned. However, now that I have had sight of the proposals, I want to examine them in detail.

I get some satisfaction from what the cabinet secretary said about what she expects of the regulations. For example, I raised the issue of ensuring that evidence that was previously used to maintain vetting cannot in all cases be used at a later date. I am satisfied that some of that can be dealt with in the regulations.

I have noted what the cabinet secretary said about my amendments. Given the concerns that the Scottish Police Federation and the Association of Scottish Police Superintendents have raised—I note that they did not get a chance to examine the provisions at stage 2—I was trying to ensure that vetting is not used when misconduct processes should be used. I plead for that to be clear as the regulations are taken forward.

As I indicated from the outset, I will seek to withdraw amendment 12, and I will not move my other amendments in the group, for the reasons that I have outlined—I have got some comfort on them. My one fundamental disagreement with the cabinet secretary relates to the appeals process. Forgive me, as I have not had a chance to examine the full detail of what an appeals process looks like under the statute, but it seems that someone could already have been dismissed. The thing that seems to be missing is the possibility of correcting something quite simple through some kind of corrections or appeals process.

I agree with Maggie Chapman that the vetting provisions are very important. However, as I said only a minute ago, I am not seeking to delete the vetting provisions from the bill. I am seeking to highlight that, in my view, there must have been some co-ordination between HMICS, which was conducting a review of vetting, and the Scottish Government. Whether that is the case or not, however, the Criminal Justice Committee got only a few days’ notice of the specifics of the vetting provisions and we could not take any evidence on them. We could not ask the staff unions or the Scottish Police Federation whether they thought that the provisions were fair and reasonable. It is a matter of principle for me that we should not approach legislation in a way that could impact on those groups of staff. I am sure that Maggie Chapman understands that parliamentary procedures would not allow me to make that point unless I lodged amendments at stage 3. However, I reassure her that I whole-heartedly agree with her point that we need strong standards of ethics and vetting.

The Scottish Police Federation has said that it had a general discussion with the Government and officials regarding the vetting provisions, but that there was no consultation. The former Scottish Police Federation general secretary Calum Steele says in his column in The Herald today that the vetting intervention has led to one of the most flagrant abuses of parliamentary processes in recent years. He makes the point that

“no worker should be in a position where they can be sacked on the whim of their employer and never be told why.”

That is why I hope that Maggie Chapman and others will consider the detail of my amendments.

A key concern is about the use of vetting as a substitute for misconduct regulations. In some cases, officers who have faced formal misconduct proceedings and received outcomes such as final written warnings could subsequently be dismissed through vetting processes. That would circumvent the principles of due process and undermine the outcomes of the misconduct system.

The Scottish Police Federation says:

“transparency in vetting decisions presents a major issue. Officers who fail vetting are often left in the dark about the specific reasons for their failure, with data protection cited as a justification for withholding that critical information.”

It says that the

“application of recruitment vetting standards”

would be problematic if a serving officer with a moderately long career was held to the same vetting criteria as new recruits, and it adds:

“Scotland currently refuses to disclose detailed reasons for vetting failures to serving officers ... This lack of transparency breeds mistrust and prevents them from understanding or addressing the concerns raised.”

To ensure fairness and accountability, I believe that the service must look to disclose vetting issues where it can.

HMICS looked at 250 cases over a four-year period to review where vetting clearances were approved and where the applicant had previous convictions. It is unclear whether the new vetting procedures will have an impact on those cases. It is not a question of whether we think that that is right or wrong; the point is that we do not know whether the new vetting procedures will have an impact on those officers.

Although the bill does not specify the interval for new vetting, I think that HMICS has suggested that it would be every 10 years. The Association of Scottish Police Superintendents said that it is concerned that the proposals on vetting could be open to misuse through the service or authority seeking to create a fast-track or alternative method to dismiss police officers without notice. To put it simply, if the existing misconduct regulations and/or performance and capability regulations are not used correctly or are viewed as requiring more effort or creating a slower route to deliberation of an outcome, the failure or withdrawal of an officer’s vetting status could be misused as an easy shortcut for dismissal. We might think that that would never happen but, when we are looking at legislation as parliamentarians, we have to account for all scenarios.

The Parliament has not been able to examine the new vetting provisions or issues such as whether there should be an appeals process, yet many officers do not know why they failed their vetting. It could be due to a third-party association or it could be the result of wrongful information that they are unable to correct.

I will now address the specifics of the amendments in the group. Amendment 13 would insert a new subsection following the definition of vetting to clarify that it should not be an alternative to or substitute for misconduct proceedings.

Amendment 14 provides for an appeal if someone is dismissed or demoted as a result of a vetting outcome.

Amendment 15 makes a key distinction between misconduct and vetting. In a misconduct hearing, there is a process, and the person has the right to defend themselves against allegations, whereas in the vetting process there is not much scope for that. I want to ensure that there is a clear distinction between the two. The amendment provides that

“vetting cannot be triggered by the conclusion of misconduct proceedings where it was determined that ... behaviour or performance was not”

below the expected standard.

Amendment 16 would provide for the vetting code of practice to include a need for evidence. That evidence would be required to demonstrate that a person is not suitable to be a police officer.

Amendment 17 would require the code of practice to

“include provision for ... reasons to be provided”

if vetting leads to the vetted person being required to comply with conditions, redeployed, demoted or dismissed.

I turn to amendment 18. The vetting of a serving police officer cannot be the same as recruitment vetting. There should be different criteria. There are currently police officers who have been convicted of small offences such as speeding offences, and they may fail their vetting. They might have failed it if they had just joined, but they might now have 15 years’ service. Amendment 18 would add wording to the definition of vetting in the relevant section to specify that it is separate from any assessment that is required as part of the recruitment process. The amendment provides that information that has previously been disclosed may not be used later as a reason to demote someone. If information has already been considered and accepted, it should not be used again. I accept that what is proposed is a belt-and-braces approach.

Amendment 24 would make a deletion.

Amendment 19 would make the same change in section 3B that amendment 14 would make in section 3A, because there are two sections to be considered.

Amendment 20 is a consequential amendment that is linked to amendment 19. It would remove the provision on appeals in proposed new section 50A(1)(b) of the 2012 act.

Amendment 21 provides that vetting may not be triggered by the conclusion of misconduct proceedings.

Amendment 22 would add to the definition of vetting to include that, in sections 3A and 3B, vetting is

“separate to any assessment required as part of the recruitment process”.

Amendment 23 would do the same as amendment 13 would do in section 3A. It says:

“For the avoidance of doubt, vetting is not a substitute for or alternative to misconduct processes where there are concerns around the standard of behaviour … of a constable”.

Amendment 25 would leave out section 3B. As I have said, I do not intend to move that, and the same applies to amendment 26. Amendment 27 relates to the long title.

I apologise to members for the length of those comments but, given that the provisions were introduced at stage 2, I wanted to be quite thorough in trying to flush out some of the issues that we might all agree on and what might be fair and reasonable so that, if we sign up to this—if we vote for the bill at decision time tonight—the measures will at least have had some debate at stage 3.

I move amendment 12.

That is where I have some difficulty. We are creating a framework, but it seems to me that a right of correction or appeal should be in the legislation. My problem with the statutory proposal is that the person will already be dismissed at that point—but perhaps I am wrong.