Chamber and committees

Good morning. I will first speak to amendments 1 and 2, which will add further sources that the chief constable must refer to when preparing the code. That follows evidence that was given to the committee and a committee recommendation.

The bill as drafted sets out sources of police ethics to which regard must be had in preparing the code, including the standards of professional behaviour, the constable’s declaration, the policing principles, convention rights and any other human rights instruments that have been ratified by the United Kingdom. Those sources are to assist the chief constable in preparing the code.

The rights and obligations under the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 are an important source, because they now have the same domestic status as rights under the European convention on human rights. I thank the Children and Young People’s Commissioner Scotland for suggesting that we add that.

I am grateful to Amnesty International for its suggestion that Police Scotland’s code of ethics should reflect the European code of police ethics. I believe that that will be a valuable source to consider when preparing the code of ethics, so my amendment 1 adds it to the list.

The UN code of conduct for law enforcement officials and the UN basic principles on the use of force and firearms by law enforcement officials are further worthy sources of police standards that will add value to Police Scotland’s code of ethics. I urge the committee to support amendments 1 and 2.

Before I turn to Katy Clark’s amendment 48, I will speak to amendment 3. The bill lists mandatory consultees that the chief constable must consult when drafting the code of ethics. Following evidence from human rights organisations, my amendment 3 will add to the list the Scottish Human Rights Commission and the Equality and Human Rights Commission. I agree with the evidence of Amnesty International that the mandatory consultees should include the Scottish Human Rights Commission. That commission will add value to and enhance the content of Police Scotland’s code of ethics.

The Equality and Human Rights Commission told the committee about the positive impact of embedding the consideration of equality in the code of ethics. I believe that the commission will provide valuable advice as consultees and—importantly—could highlight where the code could better reflect the Equality Act 2010. That would strengthen the capacity for Police Scotland to deliver on its equality, diversity and inclusion and human rights aspirations.

Adding those bodies to the list will ensure that they comment on the code, and that is a stronger measure than using the 2010 act as a source, which is what Katy Clark’s amendment 48 seeks to do. I now turn to that amendment.

The chief constable is already legally obliged to comply with her duties under the 2010 act, by virtue of the terms of that act. To add the 2010 act to the list of sources for the code would impose on her a lesser obligation than already exists and would create confusion and legal risk. I believe that my amendment 3 is stronger and would not interfere with the structure of the chief constable’s duties under the 2010 act.

Katy Clark’s amendment 49 is about the reporting obligation on the chief constable to make a statement if, following a periodic review of the code, there are no changes to make. The amendment would require the chief constable to set out details of changes that were suggested but rejected during the review.

The bill already provides that the chief constable must lay a statement before the Parliament if she has concluded that there is no need to revise the code after a review has taken place. I understand the need to assure both officers and the public that the code is keeping pace with ethical standards, but I am concerned that amendment 49, as lodged, might have unexpected consequences, such as publishing comments or information—for example, from private individuals—that were not intended to be made public.

I would like to understand more about Katy Clark’s intentions and purpose ahead of stage 3, to see whether we can find a way to meet her objectives while avoiding unintended consequences. I urge the committee not to support amendments 48 and 49.

Sharon Dowey’s amendment 4 relates to whom the chief constable must consult and share a draft with when preparing the code. The list is set out in the bill and includes people and organisations with relevant knowledge or expertise, such as staff networks that represent particular minority groups.

I welcome amendment 4 in principle. It would require the chief constable, when preparing the code of ethics, to consult those who are

“representative of individuals who have made a complaint against the Police”.

That would allow for people with direct experience of the complaints system to input into ethical policing. However, although I believe that the principles of amendment 4 would enhance the code, the wording does not make it clear that it is the voices of complainers as a group that must be heard, rather than those of individual complainers, which might make the measure ineffective or have unintended consequences, such as hampering preparation of the code. To ensure that the provision can be effective, I ask Sharon Dowey not to move amendment 4, and I commit to working with her to bring it back at stage 3.

Sharon Dowey’s amendment 50 proposes to insert a new, free-standing section to place a duty on the chief constable to review—for consistency with the code of ethics—

“the policies, procedures and guidance that relate to discipline and conduct”

and to make any changes that are identified

“within one year of Royal Assent.”

The duty on the chief constable is to prepare the code

“as soon as is reasonably practicable after section 2 of the ... Act ... comes into force.”

Even once the duty commences, a great deal of work will be involved in preparing and consulting on the code, so it makes no sense to have a requirement to complete a review within a year of royal assent. That period could have ended before the code was published.

In addition, on-going work will lead to substantial change in the policies, procedures and guidance that relate to discipline and conduct. All the recommendations that Dame Elish Angiolini made in her independent review that do not require legislative change are in the process of being implemented, His Majesty’s Inspectorate of Constabulary in Scotland’s assurance review of conduct is on-going and there will be new conduct and vetting regulations, as well as all the other work that will have to be done as a result of the bill. A review that took place before those changes had been made would quickly become entirely redundant.

It is essential that the code of ethics does not become a disciplinary code by the back door, so no amendment should be worded in such a way that it risks conflating the code with the standards of professional behaviour. However, I agree that the discipline and conduct policies, procedures and guidance and the code should form a coherent body, so I am willing to work with Sharon Dowey ahead of stage 3 on the issue. I urge her not to move amendment 50 and, if she moves it, I urge the committee to vote against it.

I move amendment 1.

On the types of offences related to misusing public office, there is a live discussion across the UK right now, for various reasons that cut across the Hillsborough tragedy and, in health, the infected blood scandal. I will say a little bit more about that in speaking to later groupings but, in short, we are waiting to hear about more detailed proposals from the UK Government. We are alive to those matters and want to engage with them constructively.

The bill sets out what is meant by “candour”. I remind colleagues that standards of professional behaviour apply to officers who are off duty, so the duty of candour also applies to officers when they are off duty. In health, the legislation is based more on a duty of candour on organisations, and not on individuals. Colleagues will recall that, in relation to the bill, we extensively debated the point that there is an individual duty of candour on constables because of the nature and importance of the role that they fulfil in our society.

I understand that there may be rules for individual doctors—for example, via their professional bodies. I am not in a position to talk in detail about that, but the duty of candour applies to constables only in legislation. The understanding is that it could be applied to staff via terms and conditions.

I am happy to write to the committee and Ms McNeill in more detail.

It is new in regard to the power to dismiss. That is the bit that is missing.

I think that, for the third time, I can give that assurance. I am delighted to do that. As always, my door is open.

This is the largest of the groups of amendments, so I will take some time to set out my position on the 19 amendments. I will start with those amendments that I support.

I support Sharon Dowey’s amendments 12 and 14, as they would put into the bill what was intended to be done in regulations on applying misconduct procedures to former constables—namely, requiring a time limit and the inclusion of a public interest test in the criteria for disapplying the time limit.

Although I cannot support amendment 13—which sets out a time limit of one year—because of a defect in the drafting, I agree in principle with the time limit of one year. I therefore ask Ms Dowey not to move the amendment, and I will work with her on an amendment for stage 3.

Likewise, amendment 53 would put in the bill a requirement to give notice to a constable, which was intended anyway, but it needs to be reworded to avoid giving constables the wrong impression that, if they engage, proceedings will not continue. I will work with Ms Dowey on an amendment on that subject for stage 3.

I cannot support amendment 51. It is an alternative to amendment 14, which I support, but its effect is quite different. It would disapply the time limit in a blanket fashion that would not allow the merits of the case to be considered. There is also a fundamental misunderstanding in relation to the barred and advisory lists. A person can be added to the barred list only if they are dismissed, and it is not possible to say whether someone will be dismissed until the proceedings have concluded and mitigation has been heard. Also, no finding would ever result in someone being placed on an advisory list, which is a holding list. I therefore strongly oppose amendment 51.

Amendment 52, like amendment 51, would disapply the time limit in a blanket fashion, without consideration of the individual merits—in this case, whether the allegation was of potentially criminal behaviour. The proportionality of disciplinary proceedings indefinitely being left hanging over a constable accused of a very minor offence, even if it was never prosecuted, would also be questionable, so there would be a real risk if the provision was included in the bill.

Amendment 54 would require disciplinary proceedings to continue despite there being on-going criminal proceedings. The amendment is highly problematic in the sense that it could jeopardise criminal proceedings because it would require conduct proceedings to continue while criminal proceedings were on-going, regardless of the prejudice that that could cause to the criminal case and of any risk to witnesses that might be involved, for example.

Ultimately, if criminal cases were prejudiced to such an extent that the proceedings were dismissed, convictions could not be secured in serious cases. In cases involving sexual offences or physical violence, for example, that could present a real public safety concern. Although the misconduct proceedings might have been able to be completed, they could, at most, result only in a person no longer working in policing. The proceedings could not require the person to be monitored as a sex offender, nor could they require imprisonment of the person if they posed a severe risk to the public.

Amendment 32, which is related to amendment 54, contains an avoidance-of-doubt provision that misconduct procedures

“may apply to a constable during any period where criminal ... proceedings are ongoing”.

However, the situation is already clear in the conduct regulations, so there is no doubt to be avoided.

Misconduct proceedings can lawfully continue while a criminal investigation is on-going, but they are often paused until after the criminal case is heard, so as not to jeopardise criminal proceedings. That can be for many reasons, not least the fact that witnesses, including the constable, come to the criminal proceedings having already had a rehearsal in the misconduct proceedings, which can seriously undermine the integrity of the oral evidence in the criminal trial. A ban on evidence or outcomes of the disciplinary proceedings being published fails to appreciate the problem that would be presented by misconduct proceedings progressing to a full hearing in advance of the criminal trial.

There can be no blanket rules that would allow misconduct proceedings to continue regardless of the risk of injustice or the risk that the criminal proceedings would be jeopardised. As I outlined, there is a very real risk to the public in jeopardising criminal trials. There are, however, possible solutions to be explored in further dialogue between Police Scotland and the Crown Office and Procurator Fiscal Service, and we are pursuing those solutions. The Government’s view is that there is no place for primary legislation in this space because of the risk that it would be counterproductive. The situation that we face in Scotland in that regard is very similar to the situation south of the border.

On amendment 55, I have listened to, and am grateful for, the evidence that the committee took from individuals who testified that investigations take far too long. I know well that the time that can be taken to reach a conclusion has a detrimental effect on everyone who is involved. However, investigations can vary widely in their complexity, and it is not realistic to put a time limit on them.

The amendment sets out no consequences for a failure to meet the timescales, which could lead to the interpretation that proceedings must be discontinued if the timescales are not met. That could lead to serious conduct issues being disregarded, which would pose a risk to members of the public and fellow officers and would undermine much of the work in respect of the bill. I appreciate that Ms Dowey and Ms McNeill are seeking to resolve issues and explore matters.

Pauline McNeill’s amendment 56, like Ms Dowey’s amendment 55, seeks to set down time limits for the completion of misconduct proceedings. As I said, such proceedings can be complex and need to be considered case by case. Again, the amendment as drafted does not set out the consequences if the timescales are breached, which presents a risk that misconduct proceedings would collapse. I say respectfully to the members that amendments 55 and 56 have plainly not, from the Government’s perspective, been thought through to the appropriate conclusions, although I appreciate that they were lodged for probing purposes, as the members have said.

Ms Dowey’s amendments 12 and 14 go some way towards doing that. In an ideal world, you would want to set out a hard-and-fast requirement to achieve the complete resolution that you seek, but, as you acknowledge, setting that out in legislation is really difficult to do.

I remind members that amendments 12 and 14 would put in the bill what would otherwise have been in regulations—namely, they require there to be a time limit and that the inclusion of a public interest test in the criteria for the time limit be disapplied if that is appropriate. I have yet to be convinced or see workings that would convince me that we could go further than that at this time.

Amendments 15, 57 and 58 would introduce an unqualified power enabling the chief constable to dismiss a constable if the chief constable considered that the constable had unacceptably failed to adhere to the standards of professional behaviour or to the code of ethics. As such, those amendments must be resisted. Fundamentally, such a power is deeply unfair and would be highly vulnerable to challenge. It would allow the chief constable to remove a constable’s ability to earn a living without a fair process, without recourse to a legally constituted court or tribunal, and without notice. There is no equivalent provision across the UK in any profession or office, and it would be unprecedented in any modern rights-compliant legal system. As the member acknowledged, there has not been any consultation on, or evidence provided on, that specific proposal, so I put it to the committee that there is absolutely no foundation for this substantial change to the bill.

My officials are in discussions with the Scottish police consultative forum on the conduct regulations and are considering ways in which misconduct hearings can be progressed more quickly, which will likely include a fast-track process for the dismissal of a constable in certain defined circumstances. However, that would still provide the constable with a right to be heard, a right to appeal and a right to have representation, as is the case with the accelerated misconduct hearing process in England and Wales.

Amendments 26 to 29 would fundamentally change the policy intention behind this section of the bill, which is about senior officers. Again, I say to the committee that the amendments should be resisted.

The reason that section 8 applies only to the dozen or so existing senior officers is that the intention is that their cases will be heard by an independent panel. Widening out access to a full re-hearing before the Police Appeals Tribunal for the many thousands of constables for all sanctions, no matter how minor, would have very serious implications for the functioning of the PAT. It would also be entirely unjustified as a matter of principle. There are sufficient appeals mechanisms in place to allow constables to appeal all disciplinary actions, and it is excessive that a constable should, for example, be able to appeal a written warning at a complete re-hearing before the PAT.

I oppose amendment 30 because I believe that suspension should be considered on a case-by-case basis and that there should be no avenue for automatic suspension of constables, which amendment 30 would allow by implication. I know that Police Scotland takes its responsibilities on suspension seriously. Conduct regulations currently limit the ability to suspend a constable to situations in which they might prejudice a misconduct or criminal investigation or in which it is in the public interest to do so. The amendment assumes the existence of an automatic suspension and, by implication, permits it. That would be quite a startling departure, and it would be strenuously opposed by stakeholders.

Amendment 31 would insert a requirement for constables to be notified as soon as an investigation into their misconduct had been commenced. What Sharon Dowey is proposing is already provided for in the regulations and would not add anything other than possible confusion, given the lack of clarity in the drafting as to what is meant by the words “investigation commenced”. I have concerns about providing notice prior to an investigator being appointed, because, at the early stage, there may be a risk of prejudicing the investigation if the subject is informed before evidence is secured.

I ask that amendments 12 and 14 be supported, for the reasons that I have set out. I ask Sharon Dowey not to press amendments 13 and 53, and I ask the committee to oppose all the other amendments in the group.

I know that, collectively, the committee has taken a great interest in the mental health and wellbeing of serving police officers, including those who have tragically lost their lives to suicide. I am acutely conscious of the sensitivities around what we are about to discuss in relation to the amendments in this group.

Although Mr Findlay is correct in saying that I will touch on the Lord Advocate’s powers, other aspects of policy drafting and practicalities need to be considered, too.

As we have heard, Sharon Dowey’s amendments 41 and 42 and Russell Findlay’s amendment 65 seek to insert an entirely new provision into the bill. That would significantly amend the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016 by adding to the list of mandatory inquiries under which the Lord Advocate must direct an investigation the death of a constable in certain circumstances. The matter was not raised in the committee’s stage 1 report, but I pay tribute to the committee for its care for and attention to the mental health of police officers and their loved ones, who live with the loss of a family member who has completed suicide.

There are a number of difficulties with the amendments. They would force a mandatory fatal accident inquiry to go ahead in circumstances in which there was no obvious link to misconduct proceedings, which is not what the bill is about. Under the 2016 act, the Lord Advocate already has considerable flexibility to instruct a discretionary fatal accident inquiry when they consider that the death

“was sudden, suspicious or unexplained, or ... occurred in circumstances giving rise to serious public concern, and”

when they decide that

“it is in the public interest for an inquiry to be held into the circumstances of the death.”

The decision whether to instruct a fatal accident inquiry is taken at the conclusion of a thorough investigation by the Crown Office and Procurator Fiscal Service, which is, of course, independent. As committee members will know, when the death appears to have been the result of suicide, that investigation will attempt to ascertain the reason or reasons for the deceased person’s actions. When there is evidence that ties the death of a police officer to their work, that is already a factor that will form part of the Lord Advocate’s consideration.

Amendments 41 and 42 make no distinction for cases in which the Crown’s investigation found no link between the circumstances surrounding the misconduct proceedings and the decision of the deceased person, and nor do the amendments make any distinction for cases in which the misconduct proceedings may have been only one of a number of factors behind the person’s actions. As Mr Findlay acknowledged, we must be sensitive to the multifactorial, complex and highly personal reasons for a person completing suicide.

Under amendment 41, a fatal accident inquiry would have to go ahead regardless of the support or otherwise of the family, including in circumstances in which that public forum would air extremely sensitive information that might be highly intrusive and traumatic for the constable’s family or other persons. Even the requirement that the family of the person must request the inquiry—as would be the case under amendment 42—would not solve the issue. Problems would still exist around who could request the fatal accident inquiry, when and how they would have to request it, and what would happen if close family members had different opinions on whether an inquiry should proceed. Given that, the same sort of distressing information could be publicly aired without the support of all family members.

By contrast, the current processes allow flexibility and ensure that the views of the nearest relatives about the holding of a fatal accident inquiry are always established by the Crown Office and Procurator Fiscal Service and are a relevant consideration in assessing whether it would be in the public interest for an inquiry to be held.

Amendment 65 would also cause issues because it is not limited to suicides. Many of the deaths that would be caught would, if accidental, be caught by the 2016 act anyway. If the intentional conduct of constables led to the death of a constable, that would be a highly relevant factor for the Lord Advocate to take into account when considering whether to order a discretionary fatal accident inquiry. The provision would therefore catch deaths that were caused by other constables’ misconduct but also cases in which a constable’s feelings about his own misconduct led to his death.

I therefore ask the committee to reject amendments 41, 42 and 65.

I do not have anything to add to or subtract from what I have said.

Amendment 5 agreed to.

Amendment 6 not moved.

Amendments 7 and 8 moved—[Angela Constance]—and agreed to.

Amendment 9 not moved.

Amendments 10 and 11 moved—[Angela Constance]—and agreed to.

Section 3, as amended, agreed to.

After section 3

There are complicated questions in relation to application and scope, so I will probably require a bit of consultation with legal officials and will come back to you in writing on what I have not answered.

On the phrase “reasonable assertion”, the privilege against self-incrimination can be properly invoked only when the person is suspected of a criminal matter. It can be invoked only if warranted and not if the person is not actually suspected of a criminal matter.

We will follow that up.

I am pleased that some of the amendments in the group about the publishing and protection of the advisory and barred lists set out what the Scottish Government intended to do in regulations. I confirm to the committee that, as narrated by Ms Dowey, I support amendments 18, 20 and 22 to 24.

Amendment 17 sets out that the Scottish Police Authority, HMICS, Police Scotland and the Police Investigations and Review Commissioner are required to

“consult the advisory list and barred list before employing or otherwise appointing a person”.

I can only support that as long as the power to add to those lists is not removed by amendment 21. I oppose amendment 21 because it would remove the flexibility of being able to add further organisations to those lists as appropriate. Therefore, I urge members to vote against amendment 21 if it is moved and pressed, although I appreciate Ms Dowey’s early indication that she does not intend to do that.

I oppose amendment 16, which would do two things in the bill, rather than through a regulation-making power. First, it prohibits the SPA from publishing the advisory list. Secondly, it sets out that the SPA

“must take steps to ensure that information ... which is included in the advisory list is not made publicly available.”

The Scottish Government’s intention has never been to require the publication of the advisory list, and those in charge of the list would need to have the proper data protection measures in place to comply with current and future data protection law. I cannot support amendment 16 because it is not clear what steps the SPA would be required to take or what is meant by “publicly available”. Amendments 22 and 23, which I support, prevent the publication of information on the advisory and barred lists and achieve the same aim in a more cohesive way. I urge the committee to reject amendment 16.

I also oppose amendments 19 and 59 and I urge the committee to reject them. The bill sets out automatic conditions for entry on the advisory list or the barred list. Allegations of gross misconduct warrant being included in the advisory list, and a finding of gross misconduct warrants being included in the barred list. As there is not a decision to place a person on the barred or advisory lists that can be reviewed, I oppose amendment 19, which provides for a right of review of a decision to place a person on one of the lists.

Where amendment 19 is even more problematic is in qualifying the right to a review by reference to the person’s engagement with disciplinary proceedings. Amendment 59 makes the same qualification in respect of disciplinary proceedings that

“have not concluded when the person ceases to be a constable”.

Both amendments would require legislation to set out a test as to what constitutes engagement with disciplinary proceedings, which would be extremely difficult to achieve without leaving the provision open to abuse. As the committee will note, the test is not set out in the amendments and therefore needs to be thought through. I urge members to oppose amendments 19 and 59.