Meeting of the Parliament

Meeting date: Wednesday, January 24, 2018

Official Report 972KB pdf

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Justice

We move on to Conservative Party business. Our first item is a debate on motion S5M-10038, in the name of Liam Kerr, on justice.

14:41  

At issue today are the transparency, openness and accountability of the executive branch of government in Scotland and this Parliament’s ability to scrutinise it effectively and hold it to account.

The cabinet secretary’s intervention in the Scottish Police Authority decision that the chief constable should return to operational duties, and the corresponding absence of transparency, openness and accountability, is not only the most recent but without doubt the most serious example of the Scottish National Party Government’s abuse of power.

Let us be quite clear. It is crucial to understand that the police force is no ordinary public service. It protects the rule of law in our democracy and its serving officers have the power to lawfully deprive citizens of their most fundamental freedom: the right to liberty. It is therefore essential that the independence of the force’s chief constable is protected from political interference.

During the scrutiny of the Police and Fire Reform (Scotland) Act 2012, concerns were raised that that independence could be compromised with the centralisation of policing into a single force. As a safeguard, the Scottish Police Authority was established as the statutory body with not only oversight of the operation of the single force but the sole responsibility to decide the operational deployment of the chief constable.

Provision was also made for the Scottish Government to have a special power, in exceptional circumstances, to intervene in an SPA decision. That special power has to be invoked for due process to be satisfied in the event of the Scottish ministers intervening in an SPA decision about the operational deployment of the chief constable.

In November last year, Dr Ali Malik issued a paper on the Scottish Police Authority and police governance in Scotland. It quoted a previous SPA board member stating that they were

“shocked, absolutely shocked at the level of government interaction”

with the SPA.

On 14 November 2017, prompted by that report, I lodged a topical question and asked the cabinet secretary whether he had ever used the special power to give direction to the SPA. He stated that he had never used his special power. That response was given five days after we know that Michael Matheson had in fact intervened in the SPA decision on 9 November. The question remains why the cabinet secretary did not use his formal power of direction.

On 29 November, the cabinet secretary again gave a statement to Parliament regarding policing. In that statement, he omitted from his supposedly full disclosure any reference to the above events.

On 10 January, a full nine weeks after his intervention, the cabinet secretary was forced to make another statement to Parliament to explain his actions. That was only after the conveners of the Public Audit Committee and Justice Committee received evidence that exposed what he had done. Again, he gave a partial account of events by failing to disclose that his senior civil servant had met Phil Gormley in Edinburgh on 30 November to discuss the chief constable’s return.

Meanwhile, thanks to a “Good Morning Scotland” interview with the cabinet secretary, it has been established that neither his meeting with Andrew Flanagan on 9 November nor the meeting between his civil servant and Phil Gormley was minuted. We will, therefore, be supporting the Labour amendment.

Furthermore, due to the absence of transparency, there is a messy dispute over the facts that Michael Matheson gave to Parliament on 10 January. We were told that the Police Investigations and Review Commissioner had not been asked for her view on the chief constable’s return, but within 24 hours of being asked, the PIRC confirmed that the chief constable’s return would not interfere with her investigation. It defies credulity that the cabinet secretary did not have the wit to make a two-minute telephone call to the PIRC to establish her view.

The cabinet secretary said that robust measures to ensure the welfare of staff members associated with the PIRC investigation had not been put in place, but the press release that was approved by the chief constable’s lawyers and the SPA confirmed that the “necessary steps” had been taken

“to support the welfare of all involved parties.”

The cabinet secretary also stated that Police Scotland’s senior command team knew nothing about the chief constable’s return. However, yesterday, DCC Livingstone was unable to state categorically that no one in Police Scotland knew about the chief constable’s return.

Since 10 January, both the justice secretary and the First Minister, in her responses at First Minister’s questions, have muddied the waters by conflating the duty of the justice secretary to maintain robust and on-going scrutiny of the governance of the SPA with the separate and distinct duty that necessitates the use of the 2012 act’s special power provision, if circumstances justify that. If the First Minister and her justice secretary do not understand the difference between the robust governance duty and an intervention that necessitates the use of the special power provision, the public will continue ask legitimate questions about their competence to discharge the duties of the two most powerful offices in Scotland.

That is against a background of the cabinet secretary continually stating that he could not interfere in disciplinary issues, which are a matter for the SPA and the PIRC, and key questions remaining unanswered. To date, the cabinet secretary has failed to confirm whether he sought legal advice. Why? Michael Matheson did not inform Parliament at the time about his decision to intervene. Why? There was absolutely no official record of what was said at the meeting on 9 November. Why?

Our democratic freedoms are fragile and should never be taken for granted. They rely on openness and transparency. The actions of the justice secretary must now be the subject of a full and independent investigation—for example, by the independent advisers on the ministerial code.

I move,

That the Parliament believes that the Cabinet Secretary for Justice has not acted transparently or openly when updating Members regarding the Chief Constable’s investigation, special leave and potential return to work.

14:48  

On 10 January I gave a statement to Parliament on the chief constable’s leave of absence, which provided Parliament with a clear account of my engagement with the Scottish Police Authority in relation to the chief constable’s leave. Investigations by the Police Investigations and Review Commissioner were on-going then and remain so, and I am very conscious of that fact in framing my comments to Parliament.

I have deliberately focused on my role in seeking assurances that due process is being followed. I will be saying nothing on the substance of the complaints or the investigation, and I urge all members to be respectful of the impact of what they say on the people involved.

My role as the Cabinet Secretary for Justice is to ensure that the public and the Parliament can have confidence in the way in which the SPA as a public body carries out its functions. It is perfectly 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. Effective decision making is underpinned by robust processes and a concern for those who are impacted by those decisions.

Will the cabinet secretary take an intervention?

Let me make some more progress.

In this case, that includes seeking assurances that the wellbeing of individuals involved in the complaints had been considered and appropriate bodies had been consulted. The lack of an effective process for those issues meant that I could not have confidence in the decision that had been made. I want to highlight what Susan Deacon, who is the new chair of the SPA, said on that issue in her evidence to the Justice Committee on 23 January. She said:

“had I been in the cabinet secretary’s shoes ... I would have asked questions about the process as to how that decision had been made. Personally, I think that the cabinet secretary would have been failing in his duty had he not asked those questions.”

Mike Rumbles rose—

Daniel Johnson (Edinburgh Southern) (Lab) rose—

Margaret Mitchell rose—

Let me make progress.

I continue to believe that my actions were entirely legitimate in terms of the accountability that public bodies have to ministers for the exercise of their functions.

I fully understand why the cabinet secretary intervened—because the process was not right—but I cannot understand why, on such an important issue, he took two months to inform Parliament that he had done so.

Mike Rumbles will be aware that, after my engagement with the chair of the SPA, the SPA board reconsidered the issue on 10 November and at that point made a public statement that it would continue the period of leave for the chief constable. There was no cause to issue ministerial direction to the SPA under the action. I would have considered that option only if the chair had been unwilling to respond to my expectation that the board would strengthen its processes around decision making on the issue. However, that was not the case.

Will the cabinet secretary confirm whether he sought legal advice on that? I refer to the full quote from Susan Deacon—she said that she would have taken a formal minute. Perhaps if the cabinet secretary had done that, he would not be before us today.

I can assure Margaret Mitchell that I took appropriate advice from members throughout the process. The issuing of directions is a formal process, which is set out. I would have considered using that had the chair of the SPA not agreed to the points that I raised with him. I did not direct the SPA on what the decision on the chief constable’s return to work should be. That decision was and is for the SPA to make as the body that has the statutory duty to consider complaints of misconduct against senior officers.

Much attention has focused on the fact that no minute was taken of the meeting on 9 November. The decision on taking a note was a matter for official judgment. Senior officials were clear that the actions from the meeting were for the chair of the SPA to take forward, and that is what happened. A full account of the meeting was given in my statement and a follow-up letter to the Public Audit and Post-legislative Scrutiny Committee from the director general of education, communities and justice, Paul Johnston.

Going forward, the Government is committed to ensuring that appropriate records are kept of meetings between the Government and the SPA. The Government will therefore support Labour’s amendment in the vote this evening.

Paul Johnston’s letter to the Public Audit and Post-legislative Scrutiny Committee also made it clear that his meeting with the chief constable on 30 November had no bearing on the position that was set out in my statement.

There are therefore both ministerial and civil service accounts of events on the record that provide a level of detail and context beyond what any contemporaneous record would have been likely to provide.

Turning to the bigger picture, I believe that we can look forward with some confidence. In Susan Deacon’s evidence to the Justice Committee on 23 January, she set out her commitment to ensuring that the SPA’s future decision-making processes and governance arrangements meet the standards expected of a major public body. She has already made improvements, including the setting up of a complaints and conduct committee. I know that she has also considered priority areas for improvement in the SPA. She is engaging with stakeholders to inform that and her ambition is to align board objectives more clearly with the future needs and direction of the organisation, which is to be welcomed.

Will the cabinet secretary take an intervention?

I am afraid that time is already pressing.

I understand that one of Susan Deacon’s immediate priorities will be to work with the board to ensure that its capabilities to deliver actions to address the issues highlighted by Her Majesty’s inspectorate of constabulary for Scotland, Audit Scotland and this Parliament. The recruitment campaign that is currently under way to identify five new SPA board members will provide an opportunity to strengthen the board.

I conclude by saying that I take my responsibilities under the ministerial code very seriously. I and officials have given clear and considered updates to Parliament in circumstances where there is a sensitive and on-going legal process. I stand by the judgments that I have made in doing so. I believe that the focus now should be on supporting Susan Deacon, as the new chair of the SPA, in her work to lead the SPA board in performing its functions in a way that is robust and commands confidence and trust.

I move amendment S5M-10038.1, to leave out from “believes” to end and insert:

“notes the Cabinet Secretary for Justice’s statement to the Parliament of 10 January 2018 regarding the Chief Constable’s leave of absence; recognises the importance of due process being followed in respect of all investigations relating to officer conduct, and accepts the need for careful judgement to be exercised when commenting on ongoing investigations in order to ensure fairness to all affected parties.”

14:56  

It is worth taking a moment to reflect on the context that surrounds this debate. At the end of 2015, Moi Ali resigned from the SPA, highlighting the practice of secret meetings and reporting serious issues with regard to the competence of the board. We have had the suspension of several of the most senior officers from the police force. Audit Scotland has disclosed serious concerns over financial decisions and pay-offs to individuals at the SPA. Most recently, we had the revelation that not only did the cabinet secretary intervene in the case of the chief constable but that that had happened weeks previously and without any record being kept. The brutal bottom line is that, whatever the explanations, justifications or reasons for any of those instances, taken as a whole it is a shambolic place for one of our most vital public services to find itself in.

Police officers and staff do an excellent job across the country. We should be proud of their professionalism and continued diligence in the way in which they carry out their work. However, we cannot separate the governance of an organisation from the work that it does, because the governance sets the direction and context. Frankly, it is demoralising for those who work in our police force to find themselves working under such shambolic arrangements. Without proper governance, we are quite simply letting let those officers down.

It is in that context that the cabinet secretary’s actions in November must be viewed. It is impossible to extract his intervention from the wider chain of events and evidence of substandard practice at the SPA. The cabinet secretary is right that there have been failures in due process and that there were issues with how the SPA conducted itself around the chief constable’s special leave. However, those shortcomings were not isolated to that particular instance; they go back months and years. There were also serious shortcomings in the answers that the cabinet secretary provided two weeks ago.

The deficiencies in the SPA are not new; they have been clear for months, if not years. Last year, as Margaret Mitchell pointed out, Ali Malik received a doctor of philosophy award from the University of Edinburgh, with his thesis citing members of the SPA board describing the SPA as toothless and raising concerns about political meddling. When people are writing PhD theses about how bad a body or institution is, it is fair to say that there is a problem. The reality is that Michael Matheson has missed opportunities and ignored warnings time and again.

Mr Matheson has been in his position since 2014. For four of the five years of Police Scotland’s existence, he has been the minister responsible for developing the governance structures, processes and procedures that surround Police Scotland, and he has been responsible for the appointments to the SPA and oversight of its work. Its failings are his failings. If the cabinet secretary is saying that he intervened because the SPA’s processes were not sufficiently robust, those failures are his failures. If he is saying that he intervened because the people on the board were not competent, those failures are his failures.

Mr Matheson has had almost four years to ensure that the SPA and its board are up to the job. After this intervention, the question has to be: is he up to his?

Ultimately, though, there is a contradiction in the cabinet secretary’s explanations. In his amendment, he points to “due process”, and he is right: due process is of fundamental importance and is ultimately what this is about. However, has Mr Matheson been following due process himself? Either this was not a serious failure, in which case he should not have intervened, or it was a serious failure, in which case he should have come before this Parliament to report it once it had happened. He came before this Parliament only after the details were leaked and Opposition parties demanded his presence. In addition, Mr Matheson should have recorded the meeting formally with minutes and an agenda.

Mr Matheson, quite simply, cannot have it both ways. Either this was a serious failure that required intervention or it was not. Serious decisions demand to be treated seriously, and that means recording them and accounting to Parliament for them. Mr Matheson fell short of the standards of transparency and accountability that we should expect from Government ministers.

Our police are dedicated and hard working and they do a phenomenal job serving our communities. They deserve a police force with governance structures that are robust and that put questions of policing beyond the speculation that we have seen played out in the press and in the chamber over recent weeks.

I move amendment S5M-10038.4, to insert at end:

“; further believes that all future meetings between the Scottish Police Authority and the Scottish Government should be minuted, and notes the calls from the campaign, Get it Minuted, that the Scottish Government should be taking agendas, notes and minutes for all meetings.”

We move on to the open debate. The time for speeches is a tight four minutes.

15:01  

We have heard the justice secretary making clear many times, and specifically in relation to the case of the chief constable, that structural safeguards and the need for due process trump his ability to intervene. On 12 September, he said in the chamber that a request had been made by the chief constable for a period of exceptional leave and that

“There is no ministerial involvement in that process.”—[Official Report, 12 September 2017; c 68.]

On 29 November, the justice secretary said that his Government created the SPA and the PIRC to

“provide independent investigation and decision making on misconduct matters”.—[Official Report, 29 November 2017; c 19.]

Since then, it has become clear that there has been ministerial involvement in the process, and yet this Parliament has had to endure a merry-go-round in order to obtain only half of the story. I say that because we have learned over the course of the past days and weeks that key details have been missed out when we have heard from the justice secretary in updates to this Parliament.

The example of my colleague Margaret Mitchell’s question on 14 November has already been referred to by her. We have learned that, prior to 14 November, the justice secretary had intervened in the case. Was that intervention lawful if he directed the SPA outside his formal powers of direction as set out in the act of this Parliament. Was it not an operational matter that he should have steered clear of?

What of his obligations under the ministerial code? That states clearly that records should be kept of official meetings that deal with substantive Government business. Surely involvement by a Government minister in the future of the chief constable and that of Police Scotland is substantive. If that is not substantive Government business, what is?

Reference to the intervention as a mere chat in which Michael Matheson simply asked a few questions will not do. As Dr Kath Murray pointed out, given the importance of the subject that was being discussed, it should never have been seen as a chat. Without any contemporaneous minutes, we are not to know whether the cabinet secretary made a request or gave a direction.

That is no way to go about Government business, and it places the SPA in an invidious position, given its obligation to try to carry out its functions in a transparent way. How is it to do so if the justice secretary himself does not act in such a way in his dealings around it and this matter, not to mention this Parliament?

The second founding principle of the Scottish Parliament is that

“The Scottish Government should be accountable to the Scottish Parliament and the Parliament and executive should be accountable to the people of Scotland.”

How can we as parliamentarians expect to be accountable to the public if we cannot hold the Government to account because it acts in such a secretive way?

I support the Scottish Conservative motion.

Thank you, Mr Lindhurst. I wrongly signalled that you had only one minute left because I was looking at the wrong clock, but I have come to my senses.

15:04  

I note that PIRC investigations are on-going under a statutory process, so I make my remarks in that context.

Today we could have been debating how best to support our police service: how best to assist Police Scotland in managing changing demands and the changing nature of crime in the 21st century. We could have been debating the threats of cybercrime or the future of the European arrest warrant with regard to Brexit. In my view, that would have been a much more constructive use of parliamentary time. Nevertheless, I respect the fact that the Conservatives have chosen to use their debating time to discuss the content of their motion and I, like the cabinet secretary, take these matters very seriously.

Part of the justice secretary’s job is to ensure that the SPA, as a public body, is carrying out its duties appropriately. That is exactly what he has done throughout the period of the chief constable’s investigation, special leave and potential return to work. The justice secretary has not only given statements to Parliament on this matter transparently and proactively; he has acted responsibly—something that the Scottish Conservatives do not know enough about.

Yesterday, all that was backed up by the SPA’s new chair, Professor Susan Deacon. For those who were not at the meeting and for those who have not read or observed the statement that she gave, she said:

“had I been in the cabinet secretary’s shoes—I have walked in such shoes in the past—I would have asked questions about the process as to how that decision had been made. Personally, I think that the cabinet secretary would have been failing in his duty had he not asked those questions.”—[Official Report, Justice Committee, 23 January 2018; c 33.]

The position is that the cabinet secretary acted entirely appropriately.

Will the member give way on that point?

I say that because it is difficult to understand how the then SPA board could have made the decision on 7 November to allow the chief constable to return to work—[Interruption.]

Sit down, please, Mr Johnson.

It is difficult to understand how the decision could have been made without first confirming that doing so would not undermine the independent PIRC investigations, of which we should be mindful, or the confidence of staff who are engaged in that process. The justice secretary has acted responsibly, because Police Scotland’s senior command team had not been told about the decision by the then SPA board on 7 November to permit the chief constable to return to work. Deputy Chief Constable Designate Iain Livingstone confirmed that point clearly yesterday.

The cabinet secretary took the view that those deficiencies in the then SPA board’s process of decision taking on 7 November were completely unacceptable. That was the right, proper and responsible thing to do.

The important reality is that police performance in Scotland remains robust and public confidence in policing is strong. The majority of people believe that local police, in constituencies such as mine and others across the country, are doing a good or an excellent job. That is a matter of fact.

As DCC Iain Livingstone made clear yesterday, policing in Scotland is strong and moving forward. In my view, the Opposition should focus more on supporting our police officers. That would be a much better use of this Parliament’s focus and time.

15:08  

Watching events unfold at the Scottish Police Authority and the Scottish Government has been a bit like watching an episode of the “Keystone Cops”. For those of us who are too young to remember the Keystone cops, let me share that they could be described as demonstrating incompetence on steroids. I probably do the Keystone cops a disservice by comparing them to the SPA and the justice secretary, because what we are witnessing is a soap opera of cringe-worthy proportions. Audit Scotland’s judgment on the SPA is damning—poor governance, poor financial management, secret meetings, and eye-watering and highly questionable payments made to staff, signed off by the chief executive. Then, of course, there is the chief executive himself, who was rewarded for failure with a substantial exit payment.

For the best part of a year, as all that was unfolding, the Cabinet Secretary for Justice did nothing. It cannot have escaped his notice that there were problems. Now he justifies his intervention with the chief constable by saying that we would criticise him if he had failed to do so. Let me tell him clearly: the criticism is that he did not intervene sooner to sort out the mess that is the Scottish Police Authority, rather than involve himself in individual cases.

Let me turn to the question of minutes of meetings. I have fond memories of being a Government minister. Notes were taken of every meeting and even every phone call. Private secretaries took notes, departmental officials took notes, everybody took notes; the civil service culture is to write things down. It is simply not credible for the cabinet secretary to say that no record was kept—officials were present; notes will have been taken. I am impressed by the level of detail that the cabinet secretary and his officials provided, all from memory, more than two months later. Do they think that we are stupid? This is nothing more than a deliberate attempt to avoid scrutiny. Funnily enough, such behaviour was the hallmark of the Scottish Police Authority, which clearly learned from the Scottish Government.

When the cabinet secretary made his statement, I asked him three questions, which he failed to answer. God loves a trier, so let me have a go again. Did the cabinet secretary have any contact with the Police Investigations and Review Commissioner prior to, during, or after the proposed return of the chief constable? Did the cabinet secretary have any contact with the acting chief constable or the senior management team at Police Scotland prior to, during, or after the proposed return of the chief constable? Let me remind the cabinet secretary that he referred to that in his statement, but suddenly no one at senior command knew anything about it—did he know that they had not been told and consult them about it?

Finally, has the cabinet secretary spoken to the chief constable, or have his officials done so, since 7 November 2017? I know the answer to that question—not that the cabinet secretary provided it. It turns out that Paul Johnston, the director general of the justice department, spoke to the chief constable—something that he did not disclose to the Public Audit and Post-legislative Scrutiny Committee when he was questioned. They discussed, among other things, Mr Gormley’s return to work.

Let me throw in another question, for good measure. Did the cabinet secretary know about some of the financial irregularities that Audit Scotland set out, before its report was published? Let me help him out here: I know that he did—in May, months earlier. That leads us to ask what he did about it. I think that the answer is nothing. He was caught like a rabbit in the headlights.

My point, on which I will finish, is that had the cabinet secretary intervened strategically and sorted out the problems at the SPA, perhaps he would not have had to intervene in individual operational decisions and we would not be in the mess that we are in now.

15:13  

I have been a member of the Justice Committee for a short time. As the debate has gone on, it has been interesting to see the difference between the evidence that has come forward and what some Opposition parties have presented.

For me, it defies credibility that we are having this debate after hearing the evidence that was given to the Justice Committee yesterday, which I found very interesting. For the Conservatives to bring this debate to the chamber shows confusion, at least, and petty party politics, at worst. We know from yesterday’s committee meeting that Susan Deacon, the current chair of the Scottish Police Authority, thinks that

“the cabinet secretary would have been failing in his duty”—[Official Report, Justice Committee, 23 January 2018; c 33.]

if he had not taken the steps that he took.

Will the member take an intervention?

In a short debate such as this, with four-minute speeches, I have time only to get my own points across.

Professor Deacon’s words are powerful on a number of levels. This is someone who has held high elected office and knows what it is like to be in a ministerial tower. This is someone who truly understands how organisations such as the SPA should work.

I have no intention of harping on or getting involved in the investigations into this matter, but let us look at the issues.

On 7 November 2017, the Scottish Police Authority, under the leadership of the then chair, Andrew Flanagan, made a decision to have Chief Constable Phil Gormley return to work. At that point, we are aware that there were three serious complaints against Mr Gormley. We are now aware that there is another complaint against him. At yesterday’s Justice Committee, when I asked whether anyone from the Scottish Police Authority had contacted the acting chief constable, Iain Livingstone, about that, the answer was not only a definite no from Mr Livingstone, but he added that he had spoken to Mr Flanagan on more than one occasion following that November meeting. Therefore, Mr Flanagan had more than one opportunity to explain what was happening. Even more shocking is that, during all this time, the acting chief constable was not asked to put in place any welfare packages of support for any of the members of staff who had complained about Mr Gormley.

In my humble opinion, the problem lies in the lack of communication from the Scottish Police Authority to Police Scotland. At the committee, Susan Deacon said that there must be a better and correct relationship between the SPA and Police Scotland. The acting chief constable, Iain Livingstone, added that better communication is the key to such issues.

I have another serious concern. I find it difficult to understand how any employee could return to the workplace without it having been confirmed whether doing so would undermine the independent Police Investigations and Review Commissioner’s investigations.

The Scottish Government has been entirely transparent about the actions in relation to the chief constable’s leave. The justice secretary has acted entirely appropriately, and it is disappointing that the Tories are attempting to use Police Scotland as a political football because, as the acting chief constable explained yesterday, the men and women of Police Scotland are still serving and protecting our nation. He gave one example that stands out for me: since the inception of Police Scotland, no murder has gone unsolved. He added that he would be interested to see whether any other jurisdictions have figures such as that.

There have been challenges and issues, but Police Scotland still delivers for the people of Scotland. In Susan Deacon, we have someone who has plans to improve the SPA and to move things forward.

Will the member take an intervention?

The member is closing.

Although I will continue to keep a watching brief, I have faith that we are in the right place with this issue and that we can move forward.

15:17  

I agree with Jackie Baillie’s use of the term “soap opera”. I, too, have been extremely critical of the SPA, but I have great hopes for Professor Deacon. This debate has become a wee bit of a soap opera—although I must say that it would have been an entirely different debate had the cabinet secretary not done what he did.

On transparency, I am sure that the Government will reflect that things could have been done better. In the previous session of Parliament, I consulted on a proposed member’s bill called the local Government accountability and transparency (Scotland) bill. I had to abandon my proposal because of lack of support, so I am absolutely delighted by the renewed interest in openness and transparency, and look forward to more debates on such matters. I mention that because I need no persuading of the benefits of there being as much information as possible in the public domain.

We all interact formally and informally daily. We know—as we heard from Professor Deacon yesterday—that informality often drives things forward. However, that in no way detracts from the need for Government to be accountable. Almost every mention of interaction at yesterday’s Justice Committee meeting was peppered with interjections about whether there had been a minute taken of the interaction. We must strike an appropriate balance.

Language is terribly important, too. The term “operational” has been used by at least a couple of members. The Police and Fire Reform Scotland (Scotland) Act 2012 has been talked about. I did not know that the cabinet secretary had “special powers”—if he did, I am sure that he would go back and write a note on some of his meetings. I presume that the special powers to which members have referred are those in section 5(2)(a), which specifically absolutely excludes direction being used in relation to police operations. [Interruption.]

It is important to say that there is a very clear—[Interruption.]

I do not like to interrupt, but I say to the Minister for Community Safety and Legal Affairs and Ms Baillie that I do not want debates across the chamber, please. Thank you.

Thank you, Presiding Officer.

You are much more interesting, Mr Finnie. Proceed.

You are very kind, Presiding Officer.

Section 2(3) is on the functions of the authority. It says:

“The Authority must try to carry out its functions in a way which is proportionate, accountable and transparent and which is consistent with any principle of good governance which appears to it to constitute best practice.”

That is precisely what Mr Flanagan failed to do.

Were you referring to section 5 of the 2012 act—the directions provision?

Yes. That is what I have just read from. I hope that Margaret Mitchell will take an opportunity to reflect on it in the future.

We have heard about the implications of the SPA’s flawed decision. Those implications do not concern only the welfare of officers who, in a disciplined organisation, have had the courage to come forward and make a complaint. No regard was paid to that; significantly, no regard was paid to the operational implications of the decision. Yesterday, the acting chief constable Iain Livingstone covered the implications for the statutory obligations that a chief constable has in relation to a number of outside bodies, including the Crown Office and Procurator Fiscal Service, and, importantly, he covered the demarcation regarding discipline for federated ranks and superintending ranks.

In the limited time that I have left, I express the hope that we will all take a measured approach. In its amendment, the Government talks about the importance of following “due process”, but it would be better for us all if, henceforth, the cabinet secretary would keep a note of meetings.

15:21  

I say at the outset that I think that the justice secretary was right to ask questions of the chairman of the SPA when the new information about the chief constable returning to work was brought to his attention. We have already addressed the issues to do with the PIRC, the acting chief constable knowing about the decision and the welfare of the complainants. I think that Mr Matheson was right, and if I had been in his position, I would probably have asked the same questions.

However, it is on the central point that I am disappointed with the justice secretary’s response. He has tried to conflate the substance of his intervention with the process surrounding that intervention. He chose not to tell Parliament about his intervention. Today, he has explained that because the SPA changed its mind, he felt that there was no need to tell Parliament about it. I think that we still would not have known about his intervention if the Sunday Herald had not reported the fact that he had made it. As a matter of principle, Parliament should have been informed of such an important intervention so that we could scrutinise it. Mr Matheson would have kept it secret if the Sunday Herald had not brought it to our attention.

My party asked about the issue in a freedom of information request on 6 October, and we got an answer on 21 December. It is not unusual for it to take seven weeks to get an answer, but the response contained no mention of the justice secretary’s intervention in the previous month. I presume that that is because, in our FOI request, we specified the period between July and October. It would surely have been in the interests of transparency—in which the cabinet secretary claims he has been acting throughout this process—for him to have brought his intervention to our attention at that stage, but he again chose to keep it secret. As well as not telling Parliament about his intervention, he failed to tell our party about it in response to a genuine FOI request.

The final issue on which Mr Matheson got it wrong was in his failure to keep a minute—or a note, a record or however he wants to define the bit of paper—that would have described what happened when he spoke to the chairman of the SPA. His failure to keep a record of such an important event has left him open to the accusations that he faces today. Susan Deacon said yesterday that it would be appropriate to keep an “audit trail” for such important events. The issue is nothing to do with the substance of the justice secretary’s intervention; it is all about the transparency of the process. He did not tell Parliament about his intervention, he chose to dodge an open and genuine FOI request on the subject and he failed to keep a minute.

Everything that happened was inevitable.

I ask for the tolerance of members in reminding them of what I said in a speech in 2011, which sums up the situation:

“Who will appoint every single member of the police authority? The Justice Secretary.

Who will appoint the convener? The Justice Secretary.

Who will set the Budget? The Justice Secretary.

Who has to approve every chief officer appointment? The Justice Secretary.

Who has to agree the policing plan? The Justice Secretary.

But who says that he won’t have any control at all over the police?

The man who is the Justice Secretary.”

I said at that time:

“We might think ... that ‘there’s no harm in it’ and ‘what does it matter?’ I don’t expect ministers—even with these new powers—to start to order individual arrests. That’s not how it’s going to happen.”

However, when a crisis happened and the pressure was on, that was the point at which the justice secretary intervened. We warned about it then, and that is exactly what has happened. He should have been transparent, he should have told Parliament and he should have kept a minute. It is unforgivable that he did not.

15:25  

On 29 November 2017, the justice secretary said in a statement to the Parliament:

“We created the Scottish Police Authority and the Police Investigations and Review Commissioner to provide independent investigation and decision making on misconduct matters”.—[Official Report, 29 November 2017; c 19.]

That came only 20 days after the justice secretary made the decision to insert himself into that process, ceasing its ability to make independent decisions. Section 5 of the Police and Fire Reform (Scotland) Act 2012 is clear: the Scottish Police Authority must comply with any direction that is given to it by Scottish ministers, but that does not include directions on operational matters. I think it would be safe to say that the status of the chief constable is an operational matter.

Of course, there is a level of ambiguity about what exactly the justice secretary said in his meetings with the then SPA chair, because of the Government’s continued desire to hide the contents of its discussions by not minuting meetings. As was correctly pointed out by Dr Kath Murray a policing and criminal justice researcher:

“This was a critical meeting, not just a chat. Without minutes, it’s not clear whether the intervention was a request or a direction.”

The public should have been able to find out what happened at that meeting between two senior figures who were involved with the running of the police in Scotland. That is another example of the SNP Government’s attempt to create a secret Scotland in which no one is able to hold it to account for its actions. We do not know—I doubt that we will ever know 100 per cent—what was said between the justice secretary and Andrew Flanagan. What we do know is that the justice secretary has acted foolishly and without due regard for the disruption and chaos that his actions could cause for the leadership of our police service. This whole episode has raised questions about his judgment and leadership.

In this country, we still operate under the basic principles that were outlined when the first professional police force was put in place by Robert Peel. The police are civilians in uniform, and they are able to police only with the implicit consent of their fellow citizens. Policing by consent works only because it is built upon support from the public for it, which is built upon transparency, integrity and accountability. By his actions, the justice secretary has done harm to all three of those principles. By not minuting his dealings with the SPA, he has damaged the public’s ability to hold him and the SPA to account for their actions. By not being open and truthful to the chamber about his dealings with the SPA, the justice secretary has damaged the integrity of his office and that of the Scottish Police Authority. He has brought into question the ability of the Scottish Police Authority to act independently and to hold Police Scotland accountable.

It is clear from what I have said, and from what I have heard from colleagues on the Conservative side of the chamber, that the justice secretary has not acted in a transparent manner. That is why it is necessary for members to support the motion in Liam Kerr’s name.

15:29  

I will begin by reflecting on the nature of the motion that is before the chamber today, which I believe has a deeply personal undertone. That is why I want to start my remarks by focusing on my personal experience of the Cabinet Secretary for Justice.

Members: Oh, come on.

Members can be bored with that if they want to be.

I first met Michael Matheson some 21 years ago, when he was standing as the SNP candidate for Hamilton North and Bellshill during the election in 1997. At that time, I was a member of the Bellshill branch of the SNP and he was nominated by the Mossend branch as the constituency candidate—and he was an excellent one. I believe that it was his first attempt at being a candidate—[Interruption.]

In calling for order, I gently chide Mr Lyle. This is not a job reference. I hope that you are going to speak to the motion.

Maybe not, but I—[Interruption.]

Please sit down, Mr Lyle. I do want to hear from you. I understand that you are speaking to the Conservative motion, which is about acting

“transparently or openly when updating Members regarding the Chief Constable’s investigation, special leave and potential return to work”,

so I would like you to speak to that, please.

Yes, I will speak to that, Presiding Officer.

I believe that Michael Matheson is honest, forthright and someone who can be relied on at every opportunity to provide accurate information. I was very impressed by the cabinet secretary, and I remember saying to him, “You’ll go far, son.” I am sorry that I did not keep a record or a minute of the meeting.

For the Tory Party to bring this debate to the chamber today is, frankly, outrageous and shallow. [Interruption.] As the First Minister touched on last week, the cabinet secretary acted entirely appropriately in questioning whether the PIRC, as well as the senior command at Police Scotland, had been consulted, given the on-going investigation into allegations about the chief constable. For Ruth Davidson, Margaret Mitchell and the Tories to assert that Michael Matheson’s procedural questioning was unlawful is totally unjustified.

As the First Minister also noted, the justice secretary is accountable to this Parliament and has a responsibility to ensure that the SPA is carrying out its duties properly. By asking the questions that he asked, the cabinet secretary took steps to ensure that the SPA was handling its investigation appropriately. Indeed, after questioning the SPA, the cabinet secretary found that it had not taken the necessary steps to ensure and support the welfare of all parties in the investigation. Moreover, it is clear that, from the questions asked, the cabinet secretary could not be satisfied that due process had been followed in the SPA’s investigation, and he found that Police Scotland’s senior command team had not been told about the decision to permit the chief constable to return to work. To reiterate: the cabinet secretary was simply doing his job, and for the Tories to suggest that he was doing otherwise is poor form and shows how shallow they can go.

On the topic of transparency, which Ruth Davidson, Margaret Mitchell and the Tories claim has been absent, the Scottish Government has taken all the appropriate measures to ensure complete transparency. Not only is the Tories’ criticism unjustified, it is incredibly hypocritical as well. Weekly, the Opposition parties criticise the Scottish Government for not intervening enough in the operation of Police Scotland, yet now they complain that our cabinet secretary is asking legitimate questions. As the First Minister mentioned, if Michael Matheson had not asked such questions, the Tories and others would rightly be asking why he had not. I imagine that they would have been going at it hammer and tongs, asking why the cabinet secretary did not do this or that, yet now they ask why the cabinet secretary got involved. The Tories’ position is riddled with hypocrisy.

Members: That is long enough.

No, that is not long enough—I could go on.

In closing, I will paraphrase a rather famous comment made by Senator Bentsen to Dan Quayle in the 1988 United States vice-presidential debate. I know Michael Matheson. He is a friend of mine. Michael Matheson is an exceptional cabinet secretary. I suggest that members accept his word on this issue—

Please conclude now.

—and reject this personal attack on his character and integrity.

Thank you. Please sit down.

I say to members that it is for the Presiding Officer to decide when a member must conclude. I made a long intervention on that member’s speech, so he got some more time to make up for that. However, I will not have indications from the floor as to whether a member is getting the right amount of time—that is a job for me.

We move to closing speeches, and I call Daniel Johnson. You have four minutes, Mr Johnson.

15:34  

Thank you, Presiding Officer—

Follow that.

I am not entirely sure how to follow that.

This is a serious debate with serious implications for the way in which our police force is run and governed. Ben Macpherson spoke at some length, asking whether there are not more important things to discuss. I put it quite simply: there is no more important point than the effectiveness of the governance of policing in this country. That governance has had fundamental and serious questions asked about it, so it is vital that we discuss them, and that we have transparency around the governance and the decisions that are made.

Other members have questioned the evidence and asked what evidence we have. If we were to listen to them, we might think that that evidence started in September last year, which is ridiculous. As a number of members have pointed out, there were concerns at the very inception of the legislation. There were concerns about local accountability, effective oversight and separation from ministers when the legislation was first introduced and right through stages 1, 2 and 3.

Since Police Scotland was formed, the SNP has had form. It has interfered with police matters. Kenny MacAskill interfered in stop and search. There has been interference over routine arming and control rooms. That interference in operational matters has extended into issues around the governance and decision making and the failures of the governance and oversight of the SPA. Ministers are directly involving themselves in decision making.

Is it the member’s view that the cabinet secretary, the Government and members should have no view on the routine arming of police or, indeed, the additional arming of police?

Of course we should take a view on policy matters, but it is about how those policy matters are followed up, how we are informed, and the communication between ministers and the police, which has to be mediated through the SPA as laid down in the law. That is what the statute says and that is the law that ministers should be following.

It is fundamentally important that the SPA is robust and that it operates independently of Government. That is a matter of principle and a matter of law. Maurice Corry was right to point out the important principles that underpin our policing, such as policing by consent and public trust. The independence of the SPA is one of the fundamental points that underpin that, because the police cannot be viewed as an organ of ministerial direction and control. That is why the independence of the police is so important, why the legislation is set out as it is, and why questions around the decision making and whether ministers have been involved in that process are so key. They are also a matter of law.

The chief constable is accountable to the SPA, which is accountable to the minister. Direction can be taken from ministers but only if Parliament is notified, and it was not. There is a serious question as to whether what happened was direction.

The cabinet secretary was very clear in the statement that he made two weeks ago. He made a request of the chair of the SPA, and the chair complied with it. Can the cabinet secretary please explain to me the difference between a request and a question? It is fundamentally important, and how can we ever know without a proper record of what the request was and how it was made?

As I said in my earlier speech, the effectiveness of these institutions ultimately reflects on that of the cabinet secretary. They are his appointments and the SPA has operated under his direction and control. That is why he must answer for its failure, for its failures are his failures.

15:38  

In my opening remarks, I set out clearly the nature of my engagement with the SPA on the return of the chief constable from leave. I will try to pick up on some of the issues that have been raised during the debate.

As I set out in my statement, and as I said here again this afternoon, there was no doubt in my mind that there were significant deficiencies in the process that the SPA applied to its decision-making process on 7 November. From the discussion that I had with the chair of the SPA, it was clear that no account had been taken of the PIRC’s investigation into the complaints that were already live, and that there had been no contact with the PIRC to understand the impact on the investigation should the chief constable return to his duties. That was set out in the letter from the commissioner to the Public Audit and Post-legislative Scrutiny Committee in December last year or January this year.

We also know that there was no engagement at that point with the head of Police Scotland—Iain Livingstone, the deputy chief constable designate—about managing the return of the chief constable. No welfare arrangements were put in place for the complainants, who worked in the organisation, or for the chief constable in returning to his duties. We should keep in mind that Police Scotland has a whistleblowing policy to encourage people to have the confidence to come forward to make complaints and raise concerns as and when it is appropriate.

Will the cabinet secretary give way?

Sorry—I need to make progress as we have limited time.

Had I known that there had been no engagement with the PIRC or the command team in Police Scotland, and that no welfare arrangements had been put in place for the staff who had made complaints or even for the chief constable, I have no doubt that all the members in the chamber who are seeking to criticise me this afternoon would have been shouting even louder about my failure to take action on the matter.

Let me turn to the inherent confusion that the Conservatives in particular have about operational responsibility. It is somewhat ironic that I am now being accused of and criticised for intervening in an operational policing decision when, on 17 October, Liam Kerr issued a press release that was entitled “Matheson—a justice secretary who won’t take responsibility for police”. In that press release, he accused me of referring to as the responsibility of the chief constable issues such as the number of unfilled chief inspector posts, the performance of control rooms, the cost of overtime in Police Scotland, the control centre in Dundee, the number of staff, IT outages and a database for vulnerable persons. Those are all operational matters. He went on to say:

“This is the behaviour of a justice secretary who doesn’t want to take responsibility for his brief.”

Contrast those operational policing matters with this issue, which is not an operational policing matter but one that clearly falls within the responsibility of the SPA rather than Police Scotland. It is a point about governance and is a matter on which there is clear accountability to ministers.

The actions of the Conservative Party this afternoon, reflected against its press release in October, show the hypocrisy at the heart of its attack.

Will the cabinet secretary give way on that point?

Let me make the point. We have had the spectacle of Margaret Mitchell appearing to question whether it was true that welfare arrangements had not been put in place, when the deputy chief constable designate has categorically said that they were not. It is completely inappropriate to question Iain Livingstone’s views on that issue. I am very conscious of time, but I note that the Conservatives do not like to hear the truth or to reflect on the hypocrisy of their stance.

I also want to make it very clear that I am confident that the new chair of the SPA will take forward a range of measures to improve performance and the way in which the SPA operates. She has already established the SPA’s conduct and complaints committee, which will consider these issues. She has also made it very clear since arriving as the chair of the SPA that she intends to operate in a very different way in the months and years ahead. It is now time to give the new chair of the SPA the opportunity to make those improvements.

15:44  

This has been a contentious and, at times, highly charged debate. Despite the cabinet secretary’s attempts to introduce ancillary matters, it is predicated on a narrow motion: whether Parliament believes that this justice secretary has acted transparently and openly when updating members on the chief constable matter. To be clear, this is not about whether the decision not to let the chief constable return to work was right or wrong; this is about whether the justice secretary has acted in a legal and transparent manner. Transparency and openness are imperative when dealing with such matters. Maurice Corry was right to say that policing by consent works only because it is built on public support, which, in turn, is built on transparency, integrity and accountability.

Margaret Mitchell opened with a key point. During scrutiny of the bill that became the Police and Fire Reform (Scotland) Act 2012, concerns were raised that police independence could be compromised as a function of the centralisation of policing in a single force. As a safeguard, the SPA was established as a statutory body with not only oversight of the operation of the single force but sole responsibility to decide the deployment of the force’s senior officers. The justice secretary has been clear that he could not interfere in disciplinary matters—eight times. Gordon Lindhurst specifically referenced the fact that on 12 September, for example, the justice secretary told Parliament that a request was made by the chief constable to be granted a period of exceptional leave and that there was

“no ministerial involvement in that process”.—[Official Report, 12 September 2017; c 68.]

Maurice Corry made a further, related point when he noted that, on 29 November, the cabinet secretary said:

“We created the Scottish Police Authority and the Police Investigations and Review Commissioner to provide independent investigation and decision making on misconduct matters”.—[Official Report, 29 November 2017; c 19.]

Yet it transpires that, less than three weeks earlier, he had apparently inserted himself into that process—or had he? We just do not know whether the justice secretary made a possibly unlawful interference in an independent decision of the SPA—made behind closed doors, apparently unrecorded.

Will the member take an intervention?

No, I will not.

Gordon Lindhurst also referenced Dr Kath Murray, the respected criminal justice academic, who said:

“this was a critical meeting, not just a chat. Without minutes, it’s not clear whether the intervention was a request or a direction. These things matter.”

Yes, they do.

Our analysis of the ministerial code of conduct and the civil service code and guidance shows that ministers and civil servants should have made an official record of the crucial meeting because records should be kept of official meetings that deal with substantive Government business. If a meeting to discuss the future of Scotland’s chief constable is not a substantial piece of Government business, I do not know what is.

There is a further lack of clarity. On 11 January, the justice secretary told BBC Scotland that he would be happy to release minutes of his meeting with the SPA. However, later that day, a Scottish Government spokesman said that that would not be possible as no minute of the meeting had been taken. Where is the transparency?

Our motion also calls for openness. This is an incredibly serious matter. It involves a meeting the result of which has consequences for peoples’ lives. However, when the cabinet secretary gave a statement to Parliament on 29 November on policing, he omitted any reference to the above events. As Mike Rumbles pressed home in his intervention on the cabinet secretary, it was only on 10 January—a full nine weeks after the cabinet secretary’s intervention—that he saw fit to make a statement to Parliament explaining his actions. The cabinet secretary further failed to disclose at that point that his senior civil servant had met with Phil Gormley in Edinburgh on 30 November to discuss the same matter in another unminuted meeting.

Immediately following that statement, I specifically asked the cabinet secretary whether he had taken legal advice, because he might have broken the ministerial code if not. I still await an answer, although I was very interested in his answer to Margaret Mitchell’s intervention, in which he said that he took advice from “members”. That is very interesting—let us hear more about it.

The Labour amendment calls for future meetings between the Scottish Police Authority and the Scottish Government to be minuted, and references the get it minuted campaign. Speaking in support of that amendment, Daniel Johnson said that minutes are fundamental to transparency and therefore to good government. That is a good point and it was well made. I can confirm that the Scottish Government will be pleased to support the Labour amendment at decision time.

Members: Scottish Conservatives.

What did I say? I meant the Scottish Conservatives.

The next Scottish Government.

Yes, the next Scottish Government will support the amendment.

It is clear from the debate that, throughout this process, the justice secretary has not acted in a manner that is either transparent or open. Greater transparency and public accountability are mandatory. It is simply not acceptable for a Government to behave in this way. Willie Rennie was right when he said that the justice secretary chose not to tell Parliament and chose not to keep a minute, and that he should have been transparent.

Margaret Mitchell properly stated that

“Our democratic freedoms are fragile and should never be taken for granted. They rely on openness and transparency.”

I urge members to vote for the motion today and to send a signal to this place, to the people involved in the process and, above all, to the people of Scotland that the situation is not acceptable and that, starting now and going forward, transparency and openness must be the watchwords by which the Government operates.

That concludes the debate. I will allow a few minutes for those on the front benches to take their places—and for Mr Kerr to get his breath back, because I believe that he is speaking to the next motion.