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I contacted Christine Grahame MSP to enquire if she could provide assistance with this issue. She contacted the Minister for Community Safety to ascertain the reasons why this section (51) was included in the Fire (Scotland) Act 2005 (Prohibition on employment of police) “ A relevant authority may not employ a Constable for the purpose of carrying out any of the functions conferred on the authority by virtue of this Act.”. The Minister in his response said—

‘The rationale came about because firefighters and constables have different roles and responsibilities (some of which are statutory). From a legal perspective, there is no such thing as an off-duty constable - they hold their office 24/7. There is also no difference between specials and regulars in this context - both take the same oath to the same office and the powers and responsibilities associated with their roles are the same. With this in mind, it was acknowledged during the development of the Bill that if an individual shared obligations towards roles as a firefighter and the office of constable, they could find themselves in conflict when dealing with incidents (especially those involving criminality). It should be noted that the ban already existed from the 1947 Act - the Bill simply proposed a continuation.’

Mr Ewing was forwarded my response to the areas which I highlighted as being inaccurate. Mr Ewing then stated that he wished to make no further comment on this issue and suggested that I take the matter up with my employer (Lothian & Borders Fire & Rescue) and Lothian & Borders Police. When the Head of Personnel at Lothian & Borders Fire & Rescue was made aware of this issue in Oct. 2008 he could not find any guidance relating to s51 which actually stated that a wholetime firefighter could not undertake the role of a special constable. Himself and my group manager decided that as I had been undertaking both roles for 18 months and there had been no conflict of interest during this period, they saw no reason why I should not continue.

They then received clarification from Neil Maclennan, who stated that this restriction also applied to wholetime firefighters and special constables. as a result I was required to resign my role as a special constable as if my employer had allowed me to continue they would have been in breach of legislation. L&B Police were also unaware that this restriction existed hence why I served as a special constable for 18 months. 

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