Chamber and committees

No, thank you. I think that I have done my winding up.

Amendment 1 agreed to.

Amendment 48 not moved.

Amendment 2 moved—[Angela Constance]—and agreed to.

Amendment 49 not moved.

Amendment 3 moved—[Angela Constance]—and agreed to.

Amendment 4 not moved.

Section 2, as amended, agreed to.

After section 2

Amendment 50 not moved.

Section 3—Duty of candour

The amendments in group 3 respond directly to the recommendation that was made by His Majesty’s Inspectorate of Constabulary in Scotland to ensure that there is a requirement for all constables and staff to obtain and maintain vetting, as well as to ensure the power to dismiss should they be unable to maintain vetting. The committee also recommended that and, during the stage 1 debate, I committed to lodge amendments on the issue.

The public rightly expect the police workforce to act with integrity and professionalism at all times. The amendments will ensure that all police constables and staff will have to go through a regime of on-going vetting that will continue throughout a person’s professional life, rather than ending at recruitment. Currently, only constables and staff in specific roles undertake regular revetting.

Under the amendments, the chief constable must develop the necessary elements for a robust regime, including vetting periodically and where there is reason to revet, dismissal and entry on to the barred list as appropriate. By requiring a statutory vetting code of practice for constables and police staff, and a new regulatory regime for constables in particular, we can be confident that Police Scotland will have an effective scheme that requires constables and police staff to maintain vetting clearance. The amendments clarify that, where clearance cannot be maintained, there is a route to dismissal.

I will take the amendments in turn. Amendment 43 introduces a new chapter on vetting into the Police and Fire Reform (Scotland) Act 2012, including a section 36C, which sets out what the vetting code of practice “must” include and what it “may” include. The code must include provision for on-going vetting of staff periodically and with reason, and for dismissal to follow where appropriate. Although the duty to prepare the code lies with the chief constable, there is a duty to “involve” the SPA in the preparation of the code, and the SPA “must” assist the chief constable in that regard. The code may also set out additional detail about on-going vetting, which will apply to both staff and constables, to encourage a coherent overall picture for all who are involved in the policing of Scotland.

Proposed new section 36D of the 2012 act sets out how the code will be prepared, including that it must be fully consulted on with His Majesty’s Inspectorate of Constabulary in Scotland, staff associations, trade unions and minority staff networks before the code is published. Section 36D also requires the chief constable to review the code at least once every five years to ensure that it is current and up to date, and to revise it if necessary.

As the committee is aware, police staff are employees of the SPA, which is responsible for setting their terms. The chief constable has the power to dismiss staff under section 21(3) of the 2012 act, and dismissal for a failure of contractual vetting would be a potentially fair reason for dismissal in terms of general employment law. However, police staff are under the ultimate direction and control of the chief constable. With such a code of practice, she would be able to ensure that staff will undergo vetting periodically, can be revetted if a reason to do so arises, and can be dismissed for a failure of vetting where appropriate.

Amendment 44 introduces a regulation-making power, via a new section 50A of the 2012 act, to make similar provisions for constables as the code will make for staff. The Scottish ministers must lay regulations that provide for the vetting of police constables periodically and if a reason for a review is identified. Those regulations must also provide for the dismissal and demotion of constables where appropriate. A regulation-making power is required because police constables are office-holders, not employees, and their terms and conditions are set out in regulations.

Following the dismissal of a constable for being unable to maintain vetting, it is important that they are unable to gain employment in policing across Great Britain. Amendments 45 and 46 enable a police constable who is dismissed following a failure to maintain vetting to be added to the barred list. That enables other policing bodies to be made aware of the risk that is associated with the individual. The amendments make the treatment of a dismissal for vetting under the barred list equivalent to that of a dismissal for misconduct. That recognises that there is an equivalent need for others to be alerted to the risk that is posed by those who cannot maintain vetting clearance.

We expect legislation to be brought forward that will place police officers in England and Wales on the barred list there if they cannot maintain vetting, so amendments 45 and 46 will provide a consistent approach to vetting across Great Britain. I hope that members will agree that those amendments are pragmatic and right in principle, and I urge members to vote for them.

Amendment 47 updates the long title of the bill to ensure that it encompasses the new provisions for vetting, the need for which is reflective of the significance of the provision for a new vetting regime. The amendment does not affect the short title of the bill, which remains the Police (Ethics, Conduct and Scrutiny) Scotland Bill.

The amendments are an important addition to the bill and will provide the chief constable with the ability to have a robust vetting regime that will examine the on-going suitability of serving constables and police staff and dismiss those who might pose a risk to the police service. I hope that the committee will agree with and support the amendments.

I move amendment 43.

I will do my best to respond to all the points on details that members have raised this morning.

I will, of course, listen carefully to the on-going concerns of members and partners. I will not put a pause on matters, but that does not preclude listening and engagement in advance of stage 3.

I have endeavoured in good faith to respond to the committee’s recommendation which, as I recall, was unanimous. I gave a commitment to Parliament at stage 1 to return to the matter, and I will return in a moment to the detail of why this approach was taken.

It is factual to state that His Majesty’s Inspectorate of Constabulary made this recommendation after the bill was published. I appreciate that the bill was published some time ago, back in June, and stage 2 is the first opportunity that I have had to insert these amendments.

The amendments are crucial for many of the reasons that Ms Clark outlined. I appreciate that parliamentary timescales are often swift. We all, as individual parliamentarians, work on our own amendments and they are then shared with others in the week or the days prior to proceedings. I understand that, but some of the timescales are not within my gift.

On why there needs to be such detail, the recommendation was for a power to dismiss those who fail to maintain or obtain vetting. However, that requires the legislation to establish a regime of vetting—that is inescapable. I understand why people might question the length of the amendments and the scope and detail of the power. However, if we want to give a power to dismiss—a power that I would advocate is crucial—we need to establish the scope of the regime. I do not believe that there is any way around that.

I turn to some of the more detailed aspects. The definition will be in regulations, and it will be consulted on as required under the 2012 act. These provisions are being added after the introduction of the bill because of the concerns and recommendations that have been made. I do not need to rehearse those, because the committee sat through many weeks and months of evidence.

My officials have engaged not only with HMICS, Police Scotland and the Scottish Police Authority but with ASPS and the Scottish Police Federation. Although I will not pause today, I will nonetheless continue to work with—

I appreciate that.

The short answer is that, as members will know, vetting currently happens. The HMICS assurance review spoke highly of the progress that has been made on vetting and said that it is of a high quality. However, the provisions in the regulations are missing the power to dismiss. If we want to, as I believe the committee does, empower the chief constable to have that power to dismiss, that is what we must try to address.

Sometimes amendments are small and sometimes they are large, but if it is of any interest, it will be the same as it is in England and Wales.

No. The purpose of stage 2 is to make progress prior to stage 3. Given the breadth and depth of the work, I think that leaving it all to stage 3 would be somewhat foolhardy and not common sense.

I am not trying to be awkward or disrespectful. I am trying to acknowledge the frustrations. Officials have engaged with all the parties. I accept that there are always differences of opinion. We are in a process between stage 2 and stage 3. I am trying to make two points, the first of which is that I do not think that it is wise to leave all this to stage 3. In response to the committee, I gave an undertaking in good faith and made a commitment to Parliament. If the committee, which has followed the bill in great detail, is dissatisfied with this amendment at stage 2, I can only imagine that Parliament would be less than satisfied at this all coming forward at stage 3. I am not disputing that there will be work for us all to continue to pursue and engage in. However, His Majesty’s Inspectorate of Constabulary in Scotland did the work and made a recommendation, which is, ultimately, what I am responding to.

My amendments 34, 35, 37 and 38 respond directly to the committee’s recommendation that the bill provides for a presumption that the PIRC will publish responses that are received from Police Scotland or the SPA unless there are exceptional circumstances. Section 11 allows the PIRC to carry out a complaints handling review in the absence of a request by the complainer or appropriate authority if that is in the public interest, and the provisions give the PIRC discretion to publish the responses from Police Scotland or the SPA to recommendations made by the PIRC as soon as is reasonably practicable.

Amendments 34 and 35 will provide greater transparency by replacing the PIRC’s discretion to publish responses with a duty to publish, while ensuring that no information that would identify an individual—other than the chief constable—or prejudice an on-going criminal investigation will be published and allowing the PIRC to withhold the whole or part of a response if it considers that it is in the public interest not to disclose it. There will therefore be a presumption that the PIRC will publish responses.

Similar provisions that give the PIRC discretion to publish responses from the appropriate authorities are contained in section 12, which will allow the PIRC in certain circumstances to take over consideration of or call in a complaint that is being dealt with by the chief constable or the SPA. For consistency and clarity, amendments 37 and 38 also provide for a presumption that the PIRC will publish responses that are received from the appropriate authorities to recommendations made by the PIRC in relation to the call-in of complaints. I ask members to vote for all my amendments in the group.

I turn to Sharon Dowey’s amendment 33. I welcome and support the proposed new provision to place a duty on the PIRC to notify the relevant complainer of the decision to carry out a complaints handling review. It is reasonable that the complainer is alerted to any activity relating to their complaint. That will ensure a greater degree of transparency and reassurance in the complaints handling review process.

However, I cannot support Ms Dowey’s amendment 36, which would place a requirement on persons to provide documentation to the commissioner when requested to assist the investigation of a complaint that the PIRC has called in. I am not aware that that matter has been raised by the committee previously, and the amendment is not necessary. Section 44 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 already requires the chief constable and the SPA to provide information, documents and evidence that are requested by the PIRC and that are relevant to the PIRC’s functions. Amendment 36 also begs many questions, including with regard to the identity of the persons, what they are required to do and the consequences of not doing it. For all those reasons, I ask the committee to oppose amendment 36.

I also cannot support Katy Clark’s amendments 63 and 64, which would require responses by the SPA or the chief constable following a complaints handling review under section 11 or the call-in of a complaint under section 12 to include an equality impact assessment. An equality impact assessment requires a detailed examination of the impact on all nine of the protected characteristics under the Equality Act 2010 and therefore requires substantial time and effort. To require an equality impact assessment for every response to the 200 or so complaints handling reviews per year and any call-in of a complaint would be disproportionate, given that the SPA and the chief constable are already under a duty to adhere to existing laws including the Equality Act 2010. The approach that is set out in the amendments would cause much more time to be involved in complaints handling reviews and would have significant resourcing implications. The PIRC also thinks that an equality impact assessment is not necessary or appropriate all the time.

The committee’s stage 1 report highlighted the proposal from HMICS for the PIRC to have the power to refer particular matters to HMICS in this area. I believe that Sharon Dowey’s amendment 39 might assist in that by adding a specific duty on the PIRC to consult HMICS, which will provide a solid foundation to establish roles and working relations in relation to the PIRC’s new role of carrying out reviews of practices or policies of the Scottish Police Authority, the chief constable or Police Scotland. The amendment will also allow an opportunity for both parties to consider who is most appropriate to carry out such a review. I am therefore supportive of amendment 39.

However, I am sorry to say that I cannot support Ms Dowey’s amendment 40, which would add a requirement for the PIRC to assist HMICS with any work that is related to such a review. The amendment is unnecessary as there is existing legislation that requires the PIRC and HMICS to collaborate. Section 46 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 already provides an information-sharing gateway to allow the PIRC to pass information to HMICS, should that be necessary to allow HMICS to carry out its work. Furthermore, under section 85 of the 2012 act, the PIRC and HMICS have a duty to co-operate and co-ordinate activity with each other to improve how they carry out their functions and to work together to prevent any unnecessary duplication, and a memorandum of understanding is in place to help to bring that into effect.

I am informed that the PIRC is not supportive of amendment 40, for the aforementioned reasons. I therefore urge the committee to oppose amendment 40.

I know that Mr Findlay has long-standing views on the matter. As we have heard, amendments 66 and 67 seek to amend the PIRC’s reporting duty under the Police, Public Order and Criminal Justice (Scotland) Act 2006 so that reports go to the Scottish Parliament instead of the Scottish ministers. As members will recall, that specific issue was not raised in the committee’s stage 1 report, but I acknowledge that Mr Findlay has articulated his views on the matter on more than one occasion.

The Scottish ministers appoint the PIRC and, due to sponsorship and funding arrangements, it is for them, rather than the Scottish Parliament, to hold the PIRC to account. It is ministers who have the ability to consider the PIRC’s reports. Furthermore, the Scottish ministers’ reporting duty is just one of a number of established ways in which public bodies hold the PIRC to account. Members will know that the Lord Advocate has a role to play in respect of deaths in custody and allegations of criminal matters. The Scottish Parliament has a role to play, first through the Scottish ministers, who are ultimately accountable for the activities of the PIRC and their use of resources, and additionally in that the committee is able to call the PIRC to give evidence. There is also a role for the director of safer communities in the Scottish Government, who is responsible for the continuous assessment and appraisal of the commissioner’s performance, and the Auditor General for Scotland has a role to play in relation to financial matters.

Amendment 67 would replace the discretion that the Scottish ministers currently have to lay and publish reports by the PIRC with a requirement to lay and publish every report that is submitted by the PIRC under section 43(5) of the Police, Public Order and Criminal Justice (Scotland) Act 2006 in every case. Making that a requirement would remove the flexibility to deal with exceptions and to safeguard against the possibility of sensitive information being published. It is important that the Scottish ministers retain that discretion, as the new powers that are set out in the bill may result in changes to the content of future reports.

The public-facing reports that the PIRC has submitted to the Scottish ministers to date are already publicly available through publication on the PIRC’s website, so any person or body, including members of the Criminal Justice Committee and other MSPs, can review those reports if they choose to do so.

I say to the committee by way of general information that, in my formal response to the committee’s stage 1 findings, I set out the issues regarding correspondence between my predecessor Keith Brown, when he was the Cabinet Secretary for Justice and Veterans, and the Presiding Officer in and around governance issues. Those matters were narrated to the committee at that point.

I ask the committee to oppose amendments 66 and 67.