Meeting of the Parliament

Meeting date: Wednesday, January 10, 2018

Official Report 835KB pdf

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Chief Constable (Leave of Absence)

The next item of business is a statement from the Cabinet Secretary for Justice on the chief constable’s leave of absence.

14:42  

On 8 September, the Scottish Police Authority agreed to a request from the chief constable for a leave of absence while allegations against him were independently investigated by the Police Investigations and Review Commissioner. At that point, he issued a statement to deny the allegations and signalled his intention to return

“once the matter had been resolved”.

The PIRC is currently carrying out three investigations into allegations that, after preliminary assessment, she considers will, if they are proved, amount to gross misconduct.

I will give Parliament as much information as I can this afternoon, but there is still a live investigation, and there are legal issues that I must respect and which constrain the information that can be provided. However, I welcome the opportunity to clarify the engagement that the Government has had with the SPA on the matter.

The SPA and other public bodies are often described as operating at arm’s length from Government. That means that they have a significant degree of independence in their statutory functions, but operate within a policy framework that is set by ministers. As a public body, the SPA is accountable to ministers for the exercise of its functions, and even though ministers do not normally become involved in individual decisions, the way that the body carries out its functions must retain the confidence of ministers.

Throughout the matter, the Government has maintained the position that decisions are for the SPA—as the body that has the statutory duty to consider complaints of misconduct against senior officers—to make. At the same time it is, because the SPA is a public body that is accountable to ministers, legitimate to seek assurances that the SPA is carrying out its functions in a way that is proportionate, accountable, transparent and consistent with the principles of good governance, as required by legislation. All the Government’s actions have been focused on ensuring due process and fairness to all parties.

The SPA is reviewing the chief constable’s leave position on a four-weekly basis, with the first review on 5 October 2017 having resulted in a continuation of the leave arrangements. The position was due for review again in early November, when there was no indication from the SPA that any change was likely. I am clear that the onus was very much on the SPA to inform the Scottish Government if a change in circumstances was considered to be likely.

On 9 November 2017, the then chair of the SPA, Andrew Flanagan, asked to meet me. At the meeting, he informed me that the SPA board had decided to invite the chief constable to resume his duties the following day. I understand that that decision was taken in a private session of the board on 7 November. There had been no indication that a return to duties was being considered at that point.

When I learned of the board’s decision, I sought assurances that due process had been followed. Unfortunately, Andrew Flanagan was unable to give me such assurances. Key parties had not been consulted: in particular, the PIRC had not been asked for her view on whether the chief constable’s return at that point could impact on her investigations. As the commissioner highlighted in her letter to the Public Audit and Post-legislative Scrutiny Committee last week, the chief constable’s leave of absence had allowed her to interview staff in a “safe space”, which helped to minimise any concerns that they might have had about being involved in the investigation. I am sure that Parliament will agree that it is difficult to understand how the decision could be made to allow the chief constable to return without first confirming that doing so would not undermine the independent PIRC investigations or the confidence of staff who are engaged in that process.

Another area of concern was that there did not appear to be a robust plan in place to protect the wellbeing of officers and staff who had raised complaints or who had been asked to play a role in the investigation. A number of the officers and staff were based at the Tulliallan headquarters in close proximity to the chief constable, and were in positions in which they could expect to have to deal with him in the course of their work. The approach that was taken also raised questions about whether, and to what extent, those matters had formed part of the SPA’s consideration of the issue. I also highlight that Police Scotland’s senior command team had not been told about the decision, even at that late stage.

I took the view that those clear deficiencies in the process were completely unacceptable. I made it clear to the former chair that I could not have confidence in a decision that had been reached without such significant issues having been properly addressed. The former chair agreed that, before proceeding further, the SPA would carry out more engagement with the relevant persons, which I welcomed. I also advised that the SPA should consider seeking advice from Her Majesty’s inspectorate of constabulary in Scotland on how it should proceed in terms of process. It is important to stress that throughout the period the Government was not informed that the former chief executive of the SPA had already written to Mr Gormley to invite him to return.

I say to those who wish to criticise my actions that if the chief constable had returned to work on 10 November and it had then transpired that no consultation had taken place with any of the relevant interests and, further, that I had failed to ask any questions about that, I suspect that the criticism would have been harsher and would, in those circumstances, have been justified.

The SPA subsequently reconsidered the issue on 10 November and decided to continue the chief constable’s leave, and has continued to do so at subsequent reviews.

The new chair of the SPA has expressed concern about the decision-making process for the board’s previous decision and has already taken steps to improve the board’s decision-making process, including the setting up of a complaints and conduct committee. The SPA is now engaging with the PIRC and is committed to ensuring that issues relating to the welfare of officers and staff who are involved in the investigations are fully considered.

On 21 December, the chair said:

“I am committed to working tirelessly and at speed to address the shortcomings which have been identified and to ensure that in future the SPA’s decision making processes and wider governance arrangements meet the standards which should be expected of a major public body.”

The Police Investigations and Review Commissioner has confirmed that the investigations are progressing, although we do not have a firm timescale for their completion. It is in the interests of all parties that there is a thorough and effective investigation.

I understand Parliament’s interest in the matter, which the Public Audit and Post-legislative Scrutiny Committee raised with the relevant director general in the Scottish Government in an evidence session on unrelated matters on 21 December. The further information in my statement builds on the evidence that was provided in that session, and the Government will write to the committee later in the week.

However, members must remember that there is an on-going formal statutory complaints process, and I caution them against expecting the SPA—or, indeed, the Government—to give a blow-by-blow account while the investigation continues.

Public bodies need to be able to inspire not only our confidence as parliamentarians, but that of the wider public. The SPA is next due to review the chief constable’s leave on 25 January. Whatever decision it makes at that point, it is vital that it is based on a robust process that commands trust. I welcome the assurance that the SPA has given that it recognises the importance of that, and I look forward to supporting it in whatever way we can.

We move to questions.

I thank the cabinet secretary for giving us advance sight of his statement.

At the outset, I make it clear that I make no comment on the substance of the complaints against the chief constable or on whether he should be permitted to return to work. The issue here is the cabinet secretary’s interference and—it is difficult not to suggest this—hypocrisy. In response to problems that I have raised to do with the police service, he has repeatedly told the chamber, “It’s an operational matter.” It now seems that the test for whether Michael Matheson should get involved is not whether the issue is an operational matter but whether it is in the political interest of Michael Matheson to do so.

By way of reassurance, will the cabinet secretary tell the chamber whether he took any legal advice prior to intervening in the matter and, if so, when he will publish it, along with any correspondence between him and the SPA? Given that the investigation has been dragging on for months, will he say anything to the hard-working police officers and staff about when their force will again have certainty about the position of chief constable?

I am disappointed by the tone of the member’s question on this particularly important issue. As I set out in my statement, the focus of my involvement in the matter was to ensure that a robust, defendable process was in place for the SPA’s decision making in relation to the chief constable returning to his duties. It was very clear to me that, as the investigation being undertaken by the PIRC was live and the commissioner had not been consulted on the matter, we could not have confidence in the process.

Moreover, the very fact that the command team in Police Scotland knew nothing about the SPA’s decision less than 24 hours before the chief constable was due to return to his duties and that the SPA board had given no consideration to the welfare of the officers and staff involved in the complaints process was, in my view, simply unacceptable. I also believe that it would not have been acceptable to have stood by and allowed the SPA to implement that decision without asking it to revisit it and consider the matters in question before coming to a decision on the matter. That is why I asked the SPA to reconsider the matter, which it did.

This is about having a robust and defendable process, not about the outcome of the process. In my view and in my assessment, the process that the SPA had taken forward was simply unacceptable and could not be defended.

I thank the cabinet secretary for advance sight of his statement.

Policing in Scotland is in crisis, and it is a crisis of governance and leadership involving investigations into senior officers. The cabinet secretary’s actions have turned that crisis into nothing short of a shambles. His intervention has effectively overturned an operational decision about the chief constable’s employment status and, in making it, he has not only embroiled himself in the shambles but authored its latest chapter.

This decision, in law, is for the independent SPA to make; indeed, it made it unanimously but then U-turned, following Michael Matheson’s direct intervention. The intervention that the cabinet secretary should have made was to fix the governance, sort the strategy and get things moving in the right direction, and he should have done that months ago, at the start of last year when the issues became clear.

Is not the unavoidable conclusion that the cabinet secretary has prejudiced any future decision regarding Phil Gormley’s employment status and his ability to return to work? What is his response to the claim by the chief constable’s lawyer that his intervention was unlawful? Finally, what confidence can the Scottish public have in the SPA’s independence if ministers can so simply and easily intervene in its decisions?

Let me deal first of all with the point about this being an operational matter. This is not about an operational decision-making matter, but about the SPA’s process in making a decision, and clearly there is a Government interest in how that is taken forward.

The member then contradicted himself when he said that we should be addressing governance issues. That is exactly what the decision was about—it was about the governance process that the SPA had put in place in arriving at the decision. If the member is seriously saying to me that the welfare of those officers and staff who are involved in the complaints process should be ignored in the decision-making process, I think that he is being irresponsible.

I assure the member that this was about making sure that we had a robust, defendable position on how the SPA had assessed the matter and come to its decision. In my assessment, it was very clear that things had not happened. It is unacceptable not to have considered the implications of the decision for a live investigation and the welfare of staff and officers and not to have engaged with Police Scotland’s senior command team less than 24 hours before the decision was to be implemented. From a ministerial point of view, it would also have been unacceptable to simply sit back and not ask the SPA to address those matters. That is exactly what I did, and the former chair agreed that the SPA would consider the matter. Once the SPA has a robust and defendable process for considering these issues, it is up to it to decide how it will move forward, but it was clear to me that that was not the case when it presented the matter to me on 9 November.

I thank the cabinet secretary for early sight of his statement.

I have zero confidence in the SPA’s decision of 7 November and consider the cabinet secretary’s comprehensive inquiries to be entirely appropriate. The commissioner used the phrase “a safe space”, and in his statement the cabinet secretary went on to talk about the absence of

“a robust plan ... to protect the wellbeing of officers and staff who had raised complaints, or who may have been asked to play a role in the investigation”.

It is very important that colleagues here understand the wider message that comes from all the recent events and the conflicting messages that have been sent. I ask the cabinet secretary—I want to ask him and not the PIRC or the SPA, because it is appropriate that, as cabinet secretary, he says this—what steps he will take to provide on-going protection for the officers and staff who have courageously come forward with complaints.

Given Mr Finnie’s previous experience in policing, his question goes to the very heart of a key issue in how the decision was arrived at. This is about the welfare of staff in the organisation who might be working in close proximity to the chief constable, should he return. Through discussions with the new chair of the SPA, I have sought to ensure that the process that the SPA has in place in making decisions relating to the matter is defendable and robust. A key part of that is about the welfare of officers and staff. The new chair has already given that commitment and has already set out her concerns about the process that was followed in arriving at the decision of 7 November. Having discussed the matter with her, I can give Mr Finnie an assurance that the public statement that has been made by the new chair is that issues relating to welfare will be a central consideration when decisions are made about the on-going leave arrangements for the chief constable.

I am sure that the cabinet secretary will do so in his own remarks, but I ask members to be careful when phrasing questions not to pre-judge the outcome of any investigations.

I, too, thank the cabinet secretary for early sight of his statement.

The Scottish National Party Government created the centralised structure that we now have in Scotland, which puts a heavy onus on the relationships between the Cabinet Secretary for Justice, the chief constable and the SPA chair. Given that this sorry saga has dragged on for months and we now have lawyers exchanging blows, does the cabinet secretary believe that it would be possible for him to have a functioning working relationship were the chief constable to return in due course? In light of the cabinet secretary’s earlier criticisms of the SPA board, which unanimously supported Mr Gormley’s return to work back in November, does he still have confidence in the members of that board who remain in place?

I am very clear that it is not the outcome of the SPA’s future decision on the chief constable’s leave situation but the process that the SPA goes through in making it that needs to be robust and defendable. If the board makes a decision that the chief constable is to be reinstated and it has a clear, robust and defendable process for making such a decision, I will accept that.

I have had discussions with the new chair of the SPA on making sure that the governance process that it has in place for making decisions on such matters is one in which we can have confidence. I assure the member that she has given me a commitment that the SPA will ensure that that is the case. I have referred to the comments that she has made.

The member will also be aware that I commissioned work by Malcolm Burr and Nicola Marchant to look at aspects of governance of and support for the board. Their report is presently being considered by the chair of the SPA to see how the board can be further supported and aided in its work.

In my statement, I made it very clear that I do not believe that the process that the SPA had in place in arriving at the decision of 7 November was acceptable. The new chair has given me a commitment that the SPA will ensure that it has better governance arrangements in place for making such decisions in future.

First of all, I say that the cabinet secretary had not only a right but a duty to make sure that the process was robust—not only as regards looking after the welfare of the complainants but in ensuring that the chief constable gets a fair hearing. He should not be tried in public by the media.

Secondly, following on from Liam McArthur’s point, the competence of some of the non-executive directors of the Scottish Police Authority is called into question on not only this issue but other issues. We need only look at the evidence given to the Public Audit and Post-legislative Scrutiny Committee to see the failings that have taken place in the SPA’s governance procedures in recent times. Will the cabinet secretary now review the individual performance of non-executive directors to ensure that we do not have a repeat of recent incidents?

Thirdly, there are reports of some people allegedly delaying giving their evidence to the PIRC in relation to complaints against the chief constable. As I said, it is vital that the chief constable and the complainants are treated fairly and that the process is robust. However, bringing the process to a timeous conclusion requires all those involved in the investigation to co-operate fully and timeously with the investigation—

Will Mr Neil please bring his question to a timeous conclusion?

Will the cabinet secretary ensure that everybody co-operates?

The member raised a number of important points. First, he raised the issue of reviewing the individuals in the SPA who were involved in the decision on 7 November 2017. The chair of the SPA is considering how the SPA will continue to support its members in the process of making decisions on the matters concerned. Part of the process that she has now put in place to address some of the issues involves the complaints and conduct committee, which has a specific group of SPA board members on it, considering matters in much greater detail. It was clear from the discussions that I had with the SPA chair that she believes that that will give much greater focus to the process of considering the issues involved. I hope that the member will recognise that that is an important step in trying to strengthen the process and work with SPA board members on how they arrive at their decisions.

The member also raised issues around the PIRC investigation and the suggestion that there might be delay in taking evidence from individuals. He will recognise that the PIRC is conducting the investigation independently. The timeframe is within its gift, and that must be respected. I, like many members, wish the investigation to be completed as early as possible, because I believe that that is in everyone’s interest. However, the reality is that the investigation will take as long as is required, and I fully expect those who have a part to play in it to co-operate fully with it. I am sure that he will want to respect that process and that he recognises that the PIRC is taking it forward in a manner that allows it to investigate the issue thoroughly and fairly. The timeframe for that cannot be specified, as to do so could compromise aspects of the investigation.

The SPA, not the Scottish Government, is the statutory body that alone has the power to determine the chief constable’s operational deployment status. That is essential for protecting the independence of the chief constable. So, unless the cabinet secretary has chosen to use his formal powers under the Police and Fire Reform (Scotland) Act 2012, any intervention on his part resulting in a unanimous decision of the SPA board being overturned could be ultra vires. During topical question time on 14 November 2017—five days after 9 November—the cabinet secretary confirmed to me that he had never used those formal powers. Will the cabinet secretary therefore confirm whether he misled the chamber in his response to me and whether he has acted outwith his powers?

First, the answer to those questions is no. To use those formal powers of direction, an order would have to be placed before Parliament, so it would be publicly noted. Secondly, I made a request to the chair of the SPA, which he agreed to, given the range of concerns that I raised with him.

On Margaret Mitchell’s comments on this matter, I heard her say on the radio this morning that I should take an absolute and active interest in the governance and leadership of Police Scotland. The issue was one of governance and having a robust, clear process in place. That is why I raised those concerns and questions with the chair of the SPA, who agreed to revisit the matter, and that was taken forward at the board on 10 November.

On that basis, the situation is very clear. It was not a direction under the statutory powers that ministers have; it was a request to the chair of the SPA. He agreed to take those concerns forward, and they were considered during the SPA’s consideration of the issue on 10 November.

Will the cabinet secretary give an update on the current position regarding the chief constable’s leave of absence?

As it stands, the chief constable’s leave of absence is being considered on a four-weekly basis by the Scottish Police Authority. It was last considered on 19 December, when the SPA agreed to continue his period of extended leave. It will be considered again on 25 January, and the SPA will give consideration to a range of factors in determining what further measures should be put in place and in relation to whether he should continue on a period of leave.

Legislation is clear: operational policing decisions are a matter for the Scottish Police Authority, not the cabinet secretary. I cannot help but wonder whether the cabinet secretary should have taken the time over the past year to sort out the SPA, rather than sorting out individual decisions. The letter from the commissioner tells us that, had she been consulted, she would have been content with the chief constable’s return. Can the cabinet secretary therefore tell me: did he or his officials speak to the commissioner about this, and, if so, when? Did he or his officials speak to the deputy chief constable, Iain Livingstone, or the senior management team at Police Scotland, and, if so, when? Has he or his officials spoken to the chief constable, Phil Gormley, since 7 November 2017?

May I, first of all, again deal with the issue about this being an operational matter? This is an issue of governance within the SPA. It is not an operational matter. The legislation is very clear in the divisions relating to these matters.

Jackie Baillie asked whether I consulted the PIRC, whether I consulted Police Scotland and whether I consulted any other parties including the chief constable on 9 November. The issue here is that it was for the SPA to undertake that consultation as part of the process in considering these matters. The reality is that, when I met the chair of the SPA on 9 November, he had not carried out that consultation. There had been no consultation with the PIRC, no engagement with Police Scotland on planning for this with the senior command team and no consideration of the welfare of officers and staff. That would be a matter for the SPA to take forward.

Given that that was on the afternoon of 9 November, and the chief constable was due to restart his duties on 10 November at 8 am, it was important that the SPA had the opportunity to go and look at the matter, and that is exactly what it did when it considered the issue at its board meeting on 10 November.

I am conscious that I have five more members who wish to ask questions. However, we are already running out of time. This is going to have a slight knock-on effect on the subsequent debate and possibly on decision time but, given the level of interest, which has been indicated simply by the number of members in the chamber, I am going to let this item of business run on.

Will the cabinet secretary expand on why there is a need for consultation with the PIRC regarding the chief constable returning to work?

As I mentioned in my statement, it is important that, while the PIRC is leading an investigation into a complaint that, if proven, has been assessed as potentially amounting to gross misconduct, the SPA gives due consideration to the investigation in any decisions that it makes in relation to individuals who are involved in it. That is why it is reasonable to expect any discussions about the chief constable returning to work to be informed by close liaison with the PIRC on the stage that the investigation has reached and any possible ramifications of a reinstatement for those investigations. This is about the SPA board having the fullest possible picture and understanding before it makes such an important decision.

Will the cabinet secretary confirm that the chief constable’s leave of absence was at the chief constable’s own request in order to allow him time and space to focus on his preparations to address the allegations against him?

The leave of absence was requested by the chief constable and it was agreed by the Scottish Police Authority.

Will the cabinet secretary give Parliament an assurance that the SPA will consult all those who it is necessary to consult prior to making future decisions regarding the chief constable’s return to work?

As I said earlier, the new chair of the Scottish Police Authority, Susan Deacon, has given such a commitment: she will ensure that there is a more robust process around the assessment of these matters, which will involve looking at aspects relating to the welfare of officers and staff, engagement with the command team in Police Scotland and liaison with the PIRC. As the letter from the Police Investigations and Review Commissioner sets out, that engagement with the Scottish Police Authority has already started, and the chair has given a commitment that it will continue to happen.

If the cabinet secretary was so concerned on 9 November about the protection of police employees who had made complaints against the chief constable, why did he not exercise his power of direction under section 5 of the Police and Fire Reform (Scotland) Act 2012?

Because the former chair of the SPA agreed to reconsider these issues and they were reconsidered at the board meeting on 10 November.

We heard during the cabinet secretary’s statement that this is a difficult, complex situation for all those involved. With that in mind, does the cabinet secretary agree that this is not an issue that anyone should be playing politics with and that the focus must remain on ensuring that the correct procedures are followed to make sure that both those making the complaints and the chief constable are treated properly and fairly?

As I said in my statement, it is important that the process is robust and defendable. That is in the interests of all parties—the chief constable and the officers and staff in Police Scotland who are complainants. It is also important for the integrity of the process. It is in everyone’s interests to ensure that the process is allowed to run its course and that an opportunity is given for the investigation to be carried out in a thorough and detailed fashion.

I thank the cabinet secretary and all members, especially the last five for the brevity of their questions.