Police Negotiating Board for Scotland (Constitution, Arbitration and Qualifying Cases) Regulations 2023 [Draft]
Good morning, and welcome to the 18th meeting in 2023 of the Criminal Justice Committee. We have received apologies from Pauline McNeill, and Katy Clark is joining us online.
Our main item of business is consideration of a draft affirmative instrument: the Police Negotiating Board for Scotland (Constitution, Arbitration and Qualifying Cases) Regulations 2023. I am pleased to welcome to the meeting the Cabinet Secretary for Justice and Home Affairs, Angela Constance, and her Scottish Government officials. We are joined by Peter Jamieson and Graham Thomson, from the police division, and Louise Miller, from the legal directorate.
I refer members to paper 1 and annex B in our briefing paper, and I thank the Scottish Police Federation for its comments.
I invite the cabinet secretary to speak to the regulations.
Thank you, convener, and good morning to everyone. The Criminal Justice (Scotland) Act 2016 provided for the establishment of the Police Negotiating Board for Scotland, and the regulations will give effect to the constitution of the new body.
The constitution is published and linked in the regulations. It sets out how the new body will carry out its functions in negotiating pay and terms and conditions for police officers in Scotland. Our aim is to create a modern negotiating body, with consensus on the matters under its remit being the norm. However, the constitution also sets out how conciliation and arbitration should be used when all other options are exhausted. The new Police Negotiating Board for Scotland will replace the Police Negotiating Board for the United Kingdom, which now extends only to Scotland following the abolition of the Police Negotiating Board in relation to England, Wales and Northern Ireland, where police officers’ pay is now considered by the Police Remuneration and Review Body.
The new body will become operative on 17 August 2023.
To help inform the development of the regulations, the current members of the PNB, including Police Scotland, the Scottish Police Authority and the staff associations, have been consulted on the detailed arrangements set out in them. The Advisory, Conciliation and Arbitration Service Scotland has been consulted on the arrangements for conciliation and arbitration. The views of those stakeholders have been taken into account. I can report that the PNB members agree that collective bargaining should be maintained and that they support the introduction of the PNBS.
The regulations will give effect to the constitution of the PNBS, which has now been published. The regulations will disapply what would otherwise be mandatory statutory arbitration rules, and they define qualifying cases, which are cases in respect of which ministers must “take all reasonable steps” that appear to them to be necessary to give effect to the representations made to them following arbitration.
The regulations disapply the mandatory rules made under the Arbitration (Scotland) Act 2010 and, in the constitution, PNBS members have set out that the default arbitration rules under the 2010 act will not apply to arbitration in the PNBS. Disapplying the rules will allow there to be continuity in arbitration procedures between the PNB UK and the PNBS.
ACAS Scotland will carry out conciliation and arbitration in line with the guidance set out under the constitution. Arbitration findings are binding on the PNBS and would form the representations made to the Scottish ministers. In 2016, the Parliament agreed that ministers should “take all reasonable steps” to implement the findings of arbitration, but there was also agreement that that should be limited to two cases each year. The regulations and the constitution set out the criteria for the two qualifying cases, in which ministers will “take all reasonable steps” to implement the findings of arbitration. Other disputes might go to arbitration in any given year, and ministers would consider the representations that the PNBS made, but would not be legally bound to take all reasonable steps to implement the findings.
It should be noted that, since 2014—when the PNB UK was abolished in England, Wales and Northern Ireland—there has not been a need for arbitration in Scotland. Pay and terms and conditions claims in Scotland have been successfully agreed by the PNB. However, it is right that police officers have the protection of arbitration set in legislation to provide police staff associations with an agreed route to resolve disputes. Police officers are not employees, are not governed by normal industrial relations and cannot withdraw their labour, so they need to have their terms and conditions set out in police regulations and to have a fair mechanism to negotiate and resolve disputes.
We are currently recruiting the first chairperson of the new body, and I take this opportunity to thank Ian McKay, who is the current chair of the PNB UK, for his eight years of service in chairing the PNB. During those years, the PNB agreed a range of changes to officers’ terms and conditions and reached agreement each year on the annual pay award.
I believe that the PNBS continues our commitment to collective bargaining, gives an effective voice for police officers and will provide them with a mechanism to discuss and negotiate their terms and conditions with the organisations that fund the service in Scotland.
I am happy to take questions, convener.
Thank you very much, cabinet secretary. In a paper that the Scottish Police Federation submitted to the committee ahead of today’s meeting, it outlined its position and made a number of comments on the proposed constitution of the Police Negotiating Board for Scotland in the Scottish statutory instrument. Have you had the opportunity to see that paper and, if so, do you have any comments on the points that the Scottish Police Federation set out?
I am happy to answer any specific question on any matters that have been raised directly with the committee.
On that note, the SPF made a number of comments, and my understanding is that there is no scope to incorporate them in the SSI at the moment. If you are not aware of them, we will perhaps come back to this question, given that we are looking at the SSI in its current form.
As I said, I am happy to answer any questions from the committee if there are matters that the Scottish Police Federation has raised—that is not a problem.
My question was whether you had had sight of the Scottish Police Federation’s submission and had had an opportunity to consider the points that it made about the constitution.
It is important to recognise that the Government wants to act in good faith. Although, as I said, there has been no need for arbitration procedures to be used in the past, I consider protecting on-going arbitration arrangements to be a sign of strength, not of weakness. Bearing it in mind that police officers cannot withdraw their labour, it is imperative that they have access to other mechanisms.
As I said, under the 2016 act, the Parliament agreed that the Government would have to “take all reasonable steps” to implement any arbitration agreement. To put that into more human speak, we would seek, in the spirit of fairness, to fulfil any obligations that are placed on the Government when it comes to arbitration.
The wording in the legislation is “all reasonable steps”. It is not uncommon for such wording to appear in legislation. The Government accepts that arbitration arrangements should be in place and that we would act in good faith and seek to implement any arbitration decisions, other than in extreme and exceptional circumstances. I do not think that our position has changed over successive terms of office.
That is helpful. I point out that, in its submission, the Scottish Police Federation says that it feels that the proposals are
“relatively strong in our favour and in the spirit of fairness, acceptable to SPF.”
I open the questioning to other members.
Good morning, cabinet secretary and other guests.
Good morning.
To follow on from the convener’s opening line of questioning, the submission from the SPF is dated 24 May 2023 and is addressed to the committee. Has the cabinet secretary had sight of it and does the Government intend to respond formally to its content? The SPF has made a number of very specific suggestions for changes that it would like to be made to the constitution. I am happy to go through those in public if that is helpful, but it would be quicker and easier if the Government just responded to the suggestions en bloc. Does the cabinet secretary propose to do that?
The core issue is about the binding effect of arbitration. We legislated for almost-binding arbitration in the 2016 act. That is the closest that we could get to binding the Parliament and ministers—that is a really high threshold for binding the Government. I hope that that is of considerable reassurance both to the committee and to the staff associations, all of which have been consulted on the regulations and the constitution.
It is important to stress that, practically, the PNBS will operate on three levels. First, we have the regulations. Secondly, the constitution has been published—has been shared publicly—and is rooted in the regulations. However, there is a third layer below that, in the day-to-day operating guide. That is being developed and it will be for all parties in the PNBS to come to an agreement about its processes.
I want to comment on that second level. Obviously, the SPF has seen the draft—I presume that it is a draft—of the constitution that has been published. It has made specific comments as to the content of a number of paragraphs—3, 9, 37, 42, 43, 44 and 45. To go back to my original question, will there be scope for the constitution to be amended prior to being finalised?
The constitution is referenced in the regulations. Today, we are agreeing the regulations in which the constitution is rooted. The legislation and regulations are a matter for the Parliament. It is now for the PNBS to agree its own day-to-day operations. I will just check with officials that I have articulated that correctly.
I apologise if I have not explained myself properly. I just want to ensure that the very specific comments that the SPF has made will be taken into account by the PNBS as it finalises the wording of the constitution.
10:15
No. The constitution is what has been published.
Right.
I have tried to distinguish between the regulations and the constitution, and then the guide on the day-to-day operability and working practices of the PNBS.
I will ask officials to give some practical examples of what will be in the guide, which might help.
Yes, it would. In doing so, perhaps the officials could refer to the issues that the SPF has raised. It has clearly pre-empted scenarios that might be problematic and that it feels need to be addressed to avoid any future deadlock.
On the specific point about deadlock, I think that I have spoken effectively to the principal point and the importance of arbitration and acting in good faith. We would accept any arbitration decision, other than in very exceptional circumstances, as you would expect any Government to articulate.
I also addressed the issue that the regulations are for the Parliament and the constitution is rooted in the regulations. The constitution has been consulted on and negotiated, and we have come to a consensus agreement on it.
I will ask officials to talk about the guide, how it will be developed and the type of issues that it will address.
I think that your other point was a worry about the arbitration process being stifled and blockers being put on it.
Yes. Specifically on that, although the letter from the SPF is a matter of public record, it is worth saying on the record that the SPF feedback on section 37 of the constitution states:
“There seems to be scope for either of the Sides to prevent such a matter going to arbitration or for the Chairperson to decide not to refer a matter to arbitration and this could lead to a deadlock.”
On section 42, the SPF states:
“It is hard to envisage the Board failing to make recommendations based on an arbitration award. It seems to open the door for either Side to delay or block a PNB agreement based on an arbitration award and this would be highly unsatisfactory.”
I guess that I am looking for feedback on that.
The whole purpose of arbitration is to avoid deadlock, and the whole purpose of having an independent chair is to bring the sides together if there is an inability to agree. Normally, it would be for both sides to agree that a matter needs to go to arbitration. If the independent chair thinks that one side or the other is blocking procedures, they have the power to kick off the arbitration process.
I will hand over to officials to give Mr Greene more detail.
The independent chair is there to ensure that the process can be taken forward independently. It would be for the chair to decide that all discussions have failed, so the matter would be taken to arbitration. We do not think that there would be a total block if there were a failure in the process.
The federation has also raised real practical points about how the body will manage certain issues. For example, there is a point about non-members being at working groups and meetings. That happens at the moment and the PNBS guide will set out that the chair, or the chairperson of a working group, can invite non-members to meetings.
Another issue that was highlighted was about disagreements over how previous agreements are being implemented. There is a technical process for that, so we did not think that it was a matter for the constitution. The constitution was consulted on, and it was agreed that that matter would go into the guide. If there is a more technical discussion about how we implement an agreement, a process will be put in place through which the sides will get together and discuss it. We will put a proper process for that in the guide.
You are right. The SPF requests the following wording:
“Sides may nominate persons who are not”
necessarily
“representatives to serve on subcommittees and working groups with the permission of the”
chair. I presume that that permission will be carried forward in the new set-up.
This is important, given that, in the past year or so, we have seen disagreements over pay settlements and, as the cabinet secretary has said, the police cannot take the same type of strike action that other public services have taken or have threatened to take. However, they have taken industrial action of a different type, which has clearly had an effect on their ability to carry out certain functions. As we have already seen, they have, for example, resorted to principal statutory duties, withdrawn good will and so on.
Given the knowledge that there is a history of disagreement over pay, is the new scenario more or less likely to produce agreement? Will there be any alterations to the action that the police can or cannot take in the event of a dispute or, indeed, deadlock?
There is no change to what police officers can or cannot do, whether that be withdrawing good will or whatever. We know that they cannot withdraw their labour, because they are office-holders, not employees.
The agreement that we have reached, as set out in the regulations, is very much about continuity with a previous arrangement. Obviously, there is public scrutiny of the regulations and the constitution, and that certainly gives ministers an opportunity to say that they will participate in any process as fair actors. We as a Government are committed to collective pay bargaining and the principles of fair work.
In many ways, this is a bit of a legacy agreement. The nuts and bolts were agreed in 2016, but now that there will be a new chair, we need to move to a Scotland-only arrangement. Otherwise, I will have to ask the Prime Minister to appoint the new chair. We have been using a UK-wide system that has been operating only in Scotland for some years—
Absolutely.
So some of this is just about practicalities.
I understand that, but the problem with continuity—and what I think people will be concerned about—is that it might be continuity of the status quo, which, in this case, means annual pay bargaining that ends up in industrial dispute and the removal of services and withdrawal of good will by officers.
The purpose of a PNB is to enable that negotiation to take place. I am not talking about specific pay claims or, indeed, specific circumstances, because any processes that exist must be respected and must have integrity. However, this is about ensuring that, for negotiating partners, whether they be doing annual pay deals or seeking something longer term—indeed, some parts of the public sector have negotiated multiyear or two-year pay deals—we continue to have in place arrangements that are solid and fair, particularly to police officers, who cannot withdraw their labour.
Thank you for that clarity.
Finally, what role would the Scottish ministers play in any of these proceedings?
Currently, the PNB works by bringing together all the sides—the staff associations, the Scottish Police Authority, Police Scotland and Government officials—and then making recommendations to ministers. That is the size of it—I do not think that I have missed anything out.
Okay. So, the PNB makes recommendations to ministers. Is it then up to ministers to agree or disagree, or is the final decision what the PNB has recommended?
The Government is represented in the room, so we would seek to fulfil what the PNB agreed.
You supply the resource budget, so you have to sign off the cheque.
We are part of the negotiating process, although I do not personally sit in on PNB meetings, for all sorts of reasons that you would understand.
Does the Government have any override function, in terms of decisions that are made?
If all sides cannot agree, the matter goes to arbitration. We have always avoided that in the past, but that does not mean that we will not go to arbitration in the future. I do not view going to arbitration as a negative; I think that I am on record as saying that I would view it as a strength, not a weakness, that we have built that into our system.
The best way to describe the arrangement is that there is a tripartite agreement between Police Scotland, the SPA and the SG. They are the three partners on the employer side, if you like, that would have to agree to fund any settlement.
The Scottish Government’s policy note, which is annex A in our papers, says:
“This instrument allows for the preparation and publication of the constitution of the Police Negotiating Board for Scotland”.
If I understand you correctly, the constitution has now been published, but the policy note says that the instrument
“allows for the preparation and publication”
of it.
Yes. Peter, when was the constitution published?
The constitution is linked to in the documents. It has been published so that it is in place for the regulations coming into force.
The instrument’s purpose is that it
“allows for the preparation and publication of the constitution”,
but that has happened already. It has been published.
Members were consulted on the constitution, and it has been published so that it is ready as soon as the regulations come into force.
Was the constitution submitted to the Criminal Justice Committee? Did we have sight of it?
It is linked to in the regulations, so it is part of the regulations.
It is part of the package. The constitution is referenced in the regulations and the policy note. The date that I have for it is May 2023.
Jamie Greene touched on the Scottish Police Federation’s submission to the committee. Has the Government seen that?
Are you talking about the correspondence of 24 May?
Yes. The SPF raised, in effect, five points about the constitution, one of which, if dealt with, could probably deal with the other four. On paragraph 3, the SPF says that it would like the board to be able to
“consider matters affecting its own constitution.”
Has that been listened to and rejected by the Government, or is it news to the Government?
It is not news to the Government. It is a matter for the Parliament, in terms of law and regulation. The lawyer here will keep me right, but it would not be a matter for the PNBS to change its constitution.
The constitution has just been published after consultation.
It was published in May 2023.
Yes, but it could be amended, if you were so minded, to deal with the specific issues that the federation raised.
With respect, I am happy to go over the issues in more detail, but it is for the Parliament to pass regulations. It would not be the norm if the PNBS were changing its own constitution. It could, of course, come back to ministers at some point, in the fullness time, if there were something inoperable about the constitution that could be changed. However, I am conscious that time and effort have been invested to come to an agreement on the constitution and, bearing in mind the 2016 act, MSPs would be well within their rights to be somewhat concerned if matters of the constitution of this very important body were not dealt with by the Parliament via regulations but were dealt with in a more ad hoc way.
10:30
We cannot amend what is in front of us today. The Scottish Police Federation has brought us five quite specific concerns and I am still not entirely clear whether those have been considered by the Government, because they do not feature in the constitution that has now been published, or whether there is any scope for the Government to look at that again and to amend the constitution.
To be blunt, we have the highest possible level of expectations on binding arbitration. That was one of the issues that the federation raised and I think that I have addressed that.
I have addressed with the committee the issue of who, where and when is appropriate for regulations vis-à-vis constitutions.
In the correspondence, an issue was raised with, I think, paragraphs 37(a) and 37(b), in relation to the ability to bring in non-members of the board. I assume that that is about having different experts to give advice or input. That happens currently and would be a matter for the PNBS in its normal day-to-day process—there is no need to set it out in the constitution.
It is my view that we have addressed those points. I am happy to continue doing so with the committee, but the nature of the regulations and the fact that they cannot be amended are rooted in the 2016 act.
I will check whether my officials want to add anything.
I have nothing to add.
To be clear, under the 2016 act, the constitution must be given effect to by the Parliament, via regulations. The regulations that the committee is considering give effect to the constitution that was published recently, after consultation with the various parties.
The constitution is not set in stone forever. It can be revised, but any revisions would have to take place via the same process, which means that they would have to be referred to in regulations that would go through a parliamentary process, and that the same consultation process as was followed for these regulations would have to happen again for any future revisions. That is how the process works.
Just for clarification, when you say “parties”, do you mean the various entities that have an interest and not political parties?
Yes.
I presume that the Scottish Police Federation made those points at the consultation stage, and that a decision-making process led to the constitution as published, which means that what the federation is now referring to is water under the bridge.
I do not know whether the federation made those points at that stage, but policy officials would be able to confirm that.
I met with the Scottish Police Federation. I would have to check the date in my diary, but it was not that long ago—it may have been three weeks ago. Those issues were not raised with me. I have seen the letter that was sent to the committee on 24 May. I did not see it on that date, but you would not expect me to be privy to correspondence that is sent to a committee.
I am slightly uncomfortable with the fact that the federation has made a couple of points in its submission about the provisions being weaker than the federation would have wanted, although there is grudging acceptance. The federation makes some very specific points, and I am still not entirely clear whether there is any mechanism for the Government to look at those points again.
That cannot happen today, but it might in the fullness of time, if the PNBS finds that any of those matters are in some way having an effect on its substantive business.
I am going to be dead direct. My view, here and now, is that we have addressed those matters. Nothing that is being raised would prevent the passing of the regulations. Some of the issues will be matters for the guide that will be developed in consultation with all PNBS members. Some of them are much more about the PNBS’s day-to-day working. The constitution does not need to say that non-members can make representations to a sub-committee or the main PNBS.
Thank you.
I will pick up and clarify the point about the options for the committee today. We are aware that the Scottish Police Federation has made a number of recommendations for amending the SSI and, as the cabinet secretary has pointed out, it is not possible for a committee to do that, in so far as SSIs come to committee as they are and we either agree them or do not. The only option available to members if they wish to see changes is to vote against the motion or to ask whether there is scope for the SSI to be withdrawn and brought back in a revised version. From what the cabinet secretary has said, she is not minded to do that. I hope that that provides some clarity.
With respect to my colleagues, they are making the matter more complicated than it needs to be. The cabinet secretary and her officials have clearly stated that the SSI is about providing continuity and a fair process for police officers in Scotland. We have gone down a rabbit hole a bit with all the questions. I am content for the SSI to go ahead.
The rabbit hole that we are going down is based on the evidence that we have in our committee papers from one of the leading protagonists in negotiations, so it is absolutely right that we raise those points, given that the SPF is not here to give us evidence prior to the vote.
The problem that we have is more of a procedural one. From what I understand, there is potential to revise the constitution but that would need to be done by regulation. What is the point of passing regulations to rubber stamp the constitution as it is, knowing that there are stakeholders who wish changes to be made and that future regulations that implement any changes will have to come back to the Parliament? Why not do it in one go?
It would be better for the Government to have a discussion with those who have presented evidence and, if any changes to the constitution have to be made, come back with regulations and do it as a one-hit wonder. I have no problem with the regulations, but I have a problem with being asked to rubber stamp a constitution with which some stakeholders clearly have problems.
I agree with Rona Mackay that we all want a system that helps police officers to get fair pay settlements. That goes without saying.
As for going down a rabbit hole, it is perfectly proper that we ask the questions. The committee has not even seen the constitution that will be adopted. The papers suggest that it will be published but we now discover that it has been published. I fully agree with Jamie Greene that to rubber stamp it today would be a missed opportunity for the Scottish Government to go back to the Scottish Police Federation and address the points that have been made. It is probably worth revisiting.
I will try to pull the discussion together. I appreciate the points that members have made and the cabinet secretary’s responses to them.
It is important to clarify that the federation seems to seek that the wording of the constitution be amended. We have heard—I refer specifically to the update from Louise Miller—that, down the line, the constitution can be amended, which would be a separate process from agreeing the SSI in its current form today.
Is that correct, cabinet secretary?
First, let me say that I have no objection to answering any questions from committee members.
I will respond to the convener in a way that I hope will be helpful and clear. I will do my best to be succinct. The process that we are all now following was set out in the 2016 act. In terms of the constitution, the information was made available with the papers on the instrument, although people may or may not choose to read or print links or whatever.
I do not think that there are many more ways in which I can commit to the value and importance that the Government sees in arbitration and, as always, in working in good faith and as a good actor.
There are some matters in the correspondence from the Scottish Police Federation that could be addressed through the guide that will be agreed by all the PNBS members. With the greatest of respect to the SPF, my understanding was that it was broadly content, and I am conscious that other partners and staff associations were also involved in the process and that they have not made any representations to the committee, to the best of my knowledge. Therefore, we have a situation in which people are happy to move forward. As with any set of arrangements, people—whether it is the Scottish Police Federation or any other party—have the right to bore down into the detail, but in my view that will now be a matter for the guide that all partners will work collaboratively to develop.
I think that it is time that we moved on to have a Police Negotiating Board for Scotland, as opposed to using the legacy arrangement of a UK body. It is my view, and that of the Government, that a police negotiating board scenario, with the protection of arbitration built in, is far preferable to a police pay review body, which is what exists down south. That is not a negotiating body. It can make recommendations to the Home Secretary, because it is accountable to the Home Secretary but, of course, there is a pattern of recommendations not being accepted.
I think that I have put on the record in the strongest possible terms that we want to, and will continue to, enter into all this in good faith and will accept the principles and purpose of arbitration.
Thanks very much, cabinet secretary. I hope that that has been helpful and provided some clarity for members.
On that note, I will move on and invite the cabinet secretary to move motion S6M-08783.
Motion moved,
That the Criminal Justice Committee recommends that the Police Negotiating Board for Scotland (Constitution, Arbitration and Qualifying Cases) Regulations 2023 [draft] be approved.—[Angela Constance]
Motion agreed to.
Finally, I invite members to agree to delegate to me and the clerks the publication of a short factual report on the SSI.
Members indicated agreement.
I thank the cabinet secretary and her officials for joining us.
That concludes our business for the morning. There is no formal committee meeting next week, as planned.
Meeting closed at 10:44.Previous
Attendance