Chamber and committees

I seek clarification on the cabinet secretary’s position on Katy Clark’s amendments. The Government’s amendment 1 seeks to adopt, for example, the European code of police ethics and the UN code of conduct for law enforcement officials. We have had no discussion as to what that means, so it would be useful to get some indication of what those codes cover.

The cabinet secretary used the phrase “lesser obligation” when discussing amendment 48. I am unsure whether that means that the bill’s provisions are much wider in scope in relation to equality and other issues or whether her point is to do with the relationship between the provisions and the Equality Act 2010.

The Government seems very positive about Sharon Dowey’s amendment 4. I ask Sharon Dowey to make clear whether her intention is that the chief constable should consult organisations on behalf of individuals. Is that what the amendment seeks to do?

There were quite a few points that you did not cover there. The one that I am keen to understand relates to the language around “reasonable assertion”.

My amendment 56 is a probing amendment. I want to set out what I am trying to achieve with it. To be clear, it is about cases involving non-criminal matters because, with criminal matters, there are not any timescales for prosecution. I admit that, when reading the policy memorandum and the bill, it is quite difficult to get your head round what applies to what, because the provisions do not apply evenly in relation to ranks or circumstances. Rona Mackay mentioned the issue of open-ended proceedings, and I am trying to get fairness in that respect.

The committee was absolutely at one that there should be a power to pursue police officers for serious misconduct after they leave the service, whether they retire or move on. The question remains whether there should be a timescale for the completion of that and whether that timescale should be in the bill.

Amendment 56 places in the bill the requirement that gross misconduct proceedings will commence within 12 months of the misconduct, and that such proceedings will be completed within 12 months of their commencement. That is modelled on parts of paragraph 74 of the policy memorandum, so it covers all serving and former “officers of any rank”, and therefore all disciplinary proceedings.

On the period of 12 months unless the caveats apply, that is a matter of proportionality.

As the stage 1 report said,

“The Cabinet Secretary confirmed that the 12-month timescale ‘is not a hard and fast statutory requirement’”,

and that will be the case without amendment 56.

I admit that, up to the point when the cabinet secretary said that, we thought that it was a statutory requirement. There may be good reason not to have that in the bill, and I am willing to hear what the cabinet secretary has to say about that.

The stage 1 report noted the example—Sharon Dowey also referred to this case—of

“an officer who is probably three years into their suspension”.

Police Scotland was frustrated that

“the case will be sitting somewhere in the criminal justice system”—[Official Report, Criminal Justice Committee, 22 May 2024; c 42.]

for up to three years.

As the stage 1 report also notes,

“David Kennedy, SPF, told the Committee that the conduct regulations enable hearings to take place within 35 days, and that this timescale could be met in circumstances where the person accepted there was misconduct on their part.”

It is important to highlight cases where an officer accepts the misconduct proceedings. A case where there has been a drug test failure, for instance, seems to be a pretty obvious example of where we should not be waiting beyond the 35 days to take action against the officer concerned.

I feel that not having some indication of when the proceedings should be completed is unfair, both to the person who has been charged with the offence and to the victims, who are waiting to hear the outcome. We know that, in our criminal justice system, time delays are one of the biggest factors that let us down, so I thought it was worth discussing bringing in a new provision that we all support to provide clarity as to when proceedings should commence.

We should consider the case of a police officer who is charged with serious misconduct who has moved to another job but, within 12 months, finds themselves the subject of an allegation that they must defend. In the end, the allegation may not have been proven in the first place, and having an open-ended procedure seems to be contrary to human rights. I was just wanting to probe and discuss that.

Like Russell Findlay, I have heard similar concerns.

Cabinet secretary, you opened by saying that the committee had asked for these changes, but that is not the case. The committee had asked that the chief constable be given a power to remove someone who was unable to maintain their vetting. However, what we have before us—I think—is a whole series of processes and procedures that you say the police inspectorate has asked for.

Our position is similar to what Russell Findlay set out; it is not that we would not support the changes had we had some discussion about them, or had the chance to talk to police officers—who are currently vetted, of course—who would be affected by them.

The issues that the committee drew out were twofold. First, we were quite clear on the barred list—we think that that is one of the most important things about the bill, so we totally agree on that. Secondly, we agree that the chief constable should have a power to dismiss someone who has not maintained their vetting.

In the amendments that we have before us, however, it looks like there is a completely new process in relation to vetting. In my view, it is unprecedented that ministers would, at stage 2, present a whole new process for the profession, on which—unless you are telling us otherwise, cabinet secretary—the SPF has not been consulted. On a point of principle, that is unacceptable to me.

Unless you can tell us that you have undertaken such consultation before stage 2, we will vote against the amendments today. I strongly urge the Government to withdraw the amendments and seek to discuss the proposed changes with those affected, and you can then come back to the committee and say that you are satisfied that you have undertaken a consultation process. We can then look at the proposals at stage 3. However, I feel very strongly that what we have before us is not what the committee asked for, and I do not think that it is fair to represent the committee’s position as having asked for a complete review of the vetting of police—and of police staff, it seems.

I am interested to hear what the Government’s response to that position is.

Could I ask a question? Is the vetting code of practice in the amendment a new vetting procedure? I am a wee bit confused about that. We have only just seen it, so I do not know what it is. It would be helpful to know.

It seems to be an awful big amendment to do one thing.

To be fair, I did not expect you to answer that. It is just that we are going to vote on the matter shortly, so I want to be sure about what “reasonable assertion” means.

Right. I know that that will be for discussion between you and the cabinet secretary but, when the revised amendment is being framed, I would like it to be clear about how the chief constable will select those individuals. Let me put it this way—some individuals are more vocal than others and some have louder voices through representatives than others.

The proposal is good, because it is important to consult those who have complained. I note that amendment 4 refers to individuals who have “made a complaint”; it does not say whether the complaint has been successful. If we are going to do something on the issue, I would like to understand a bit more of the detail before stage 3.

In principle, I am very supportive of amendment 4, but it is important to clarify how the chief constable would go about the consultation.

Thank you.

I am in the same position as Katy Clark, in that I think that the amendments in this group are really important, regardless of how they have been framed.

There are a couple of things on which I would like further clarification. Cabinet secretary, have you had any discussion with the Scottish Police Federation or other police organisations about the implications of the duty of candour being applied to off-duty officers? Katy Clark talked about various scenarios, and one of the difficulties with the bill lies in trying to apply its provisions to scenarios that we know very little about. One scenario that I can think of involves an off-duty officer who is out socialising and witnesses something. Does the duty of candour apply in that scenario? Are there any circumstances where it would not apply—for instance, if an officer is involved as a witness, which could compromise them in some other way—or is the duty absolute?

Secondly, in relation to the framing of the bill, I want to understand the language used in amendment 10, which says

“subject, in particular, to the reasonable assertion”.

Perhaps the officials will need to help to answer that. Why is the amendment framed in that language, with the phrase “reasonable assertion”? Does that suggest that there are circumstances where the privilege against self-incrimination would not apply?

I have a third point of clarification to raise. Cases where a police officer has been confirmed as a witness illustrate an important aspect of the duty of candour versus the issue of self-incrimination. Am I right in thinking that there is no requirement for the duty of candour to be applied until the point at which the officer concerned is confirmed as a witness and not a suspect? Would there be any scenarios in which that might change—where an officer might go from being a witness to being a suspect, but has already spoken without any privilege? I was wondering whether those things had been discussed when you framed the provisions.

I want to be clear before the vote. This is not a new vetting procedure.