Seòmar agus comataidhean

Good morning, convener. As the committee knows, the Coronavirus (Recovery and Reform) (Scotland) Act 2022 includes a range of temporary justice measures, which were introduced to make sure that our justice system had the necessary flexibility to respond to the impact of the pandemic.

Since then, justice agencies have made significant progress towards recovery, and the need for some of the temporary measures has disappeared or reduced. Last year, the Scottish Government made regulations that expired several measures. Our continuing determination to reduce the number of temporary measures is shown by the expiry regulations that the committee is considering today, which expire two further measures because those are deemed no longer necessary or proportionate—including one of the extended time limits that were put in place at the start of the pandemic.

The proposed extension regulations would extend the remaining temporary measures so that those stay in force until the end of 30 November 2025. My decisions on which measures to extend are based on consultation with justice agencies, the legal profession, the judiciary, local government, and victim support organisations and other third sector bodies. The statement of reasons, which I laid alongside the regulations, sets out in some detail the findings of that consultation and review. For now, I will outline briefly why we need to retain the provisions.

We continue to see the impact of the pandemic on criminal court backlogs. Considerable progress is being made on reducing those backlogs. The total number of outstanding scheduled trials fell by more than 40 per cent between January 2022 and August 2024. However, modelling by the Scottish Courts and Tribunals Service predicts that backlogs of solemn trials will persist above the target baseline until 2026-27.

The measures in the extension regulations will continue to help in the effective use of court resources. For example, the availability of higher maximum fines will mean that more summary cases can be diverted from prosecution, which will reduce the number of cases that need to go to court.

The two extended time limits—which, under the extension regulations, would continue for one final year before reverting to their pre-pandemic level—will increase the courts’ capacity to hear trials rather than spend time on procedural matters. That will help the throughput of cases and protect victims’ access to justice.

I am committed to the reversion of the time limits next year; indeed, there is no ability under the 2022 act to extend them any further, and ministers have no intention of legislating to make them permanent, so they will end no later than 30 November 2025. However, justice agencies are clear that the extended time limits will continue to play an important role in helping the courts to manage the current solemn case load. The data that I offered shows the progress that has been made so far, but we should allow the justice agencies to continue their work to reduce the backlog. Their view is that, without the provisions, the timescale for reducing the solemn case backlog would be extended, and that there would be a risk that some cases would not proceed at all.

I am sure that none of us wants to jeopardise the courts’ capacity to focus on the throughput of trials. It is plain to me that the two remaining extended time limits must be continued for one final year, after which they will expire.

The other measures in the extension regulations include the conduct of business by electronic means, attendance at court by electronic means, and a national jurisdiction for callings from custody. Although the pandemic was a catalyst for introducing those measures, they have shown their value in modernising our justice processes and making those more efficient. They deliver better outcomes and experiences for people who use Scotland’s justice services. It is right that we look to extend the use of those valuable measures, which will promote the on-going recovery of the justice system and ensure the continuation of modernised practices that were much needed and welcomed.

Permanent reform will require primary legislation. Last month, we introduced the Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Bill, which proposes making permanent those measures that have a proven broader and longer-term benefit. To be clear, convener, that bill does not make any provision to continue extended time limits. As I said, those cannot be retained beyond the end of November 2025.

It is clear that, collectively and as a package of temporary measures, the extension regulations are vital in supporting our justice system’s continued recovery and resilience in the coming year.

Good morning, convener. As the committee knows, the Coronavirus (Recovery and Reform) (Scotland) Act 2022 includes a range of temporary justice measures, which were introduced to make sure that our justice system had the necessary flexibility to respond to the impact of the pandemic.

Since then, justice agencies have made significant progress towards recovery, and the need for some of the temporary measures has disappeared or reduced. Last year, the Scottish Government made regulations that expired several measures. Our continuing determination to reduce the number of temporary measures is shown by the expiry regulations that the committee is considering today, which expire two further measures because those are deemed no longer necessary or proportionate—including one of the extended time limits that were put in place at the start of the pandemic.

The proposed extension regulations would extend the remaining temporary measures so that those stay in force until the end of 30 November 2025. My decisions on which measures to extend are based on consultation with justice agencies, the legal profession, the judiciary, local government, and victim support organisations and other third sector bodies. The statement of reasons, which I laid alongside the regulations, sets out in some detail the findings of that consultation and review. For now, I will outline briefly why we need to retain the provisions.

We continue to see the impact of the pandemic on criminal court backlogs. Considerable progress is being made on reducing those backlogs. The total number of outstanding scheduled trials fell by more than 40 per cent between January 2022 and August 2024. However, modelling by the Scottish Courts and Tribunals Service predicts that backlogs of solemn trials will persist above the target baseline until 2026-27.

The measures in the extension regulations will continue to help in the effective use of court resources. For example, the availability of higher maximum fines will mean that more summary cases can be diverted from prosecution, which will reduce the number of cases that need to go to court.

The two extended time limits—which, under the extension regulations, would continue for one final year before reverting to their pre-pandemic level—will increase the courts’ capacity to hear trials rather than spend time on procedural matters. That will help the throughput of cases and protect victims’ access to justice.

I am committed to the reversion of the time limits next year; indeed, there is no ability under the 2022 act to extend them any further, and ministers have no intention of legislating to make them permanent, so they will end no later than 30 November 2025. However, justice agencies are clear that the extended time limits will continue to play an important role in helping the courts to manage the current solemn case load. The data that I offered shows the progress that has been made so far, but we should allow the justice agencies to continue their work to reduce the backlog. Their view is that, without the provisions, the timescale for reducing the solemn case backlog would be extended, and that there would be a risk that some cases would not proceed at all.

I am sure that none of us wants to jeopardise the courts’ capacity to focus on the throughput of trials. It is plain to me that the two remaining extended time limits must be continued for one final year, after which they will expire.

The other measures in the extension regulations include the conduct of business by electronic means, attendance at court by electronic means, and a national jurisdiction for callings from custody. Although the pandemic was a catalyst for introducing those measures, they have shown their value in modernising our justice processes and making those more efficient. They deliver better outcomes and experiences for people who use Scotland’s justice services. It is right that we look to extend the use of those valuable measures, which will promote the on-going recovery of the justice system and ensure the continuation of modernised practices that were much needed and welcomed.

Permanent reform will require primary legislation. Last month, we introduced the Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Bill, which proposes making permanent those measures that have a proven broader and longer-term benefit. To be clear, convener, that bill does not make any provision to continue extended time limits. As I said, those cannot be retained beyond the end of November 2025.

It is clear that, collectively and as a package of temporary measures, the extension regulations are vital in supporting our justice system’s continued recovery and resilience in the coming year.

I will come on to talk about some of the broader reasons and the broader landscape in a way that I hope will be helpful.

I am aware that the new UK Government is considering a new offence, which will apply to all public officials. Members might wish to note that the Law Commission’s recommendations include several categories in the list of public office holders, which go well beyond policing roles.

I will give a bit more detail. The UK Government is considering that the offence would apply not just to the police. It would include, but not be limited to, Crown servants, including ministers of the Crown; any person employed in the civil service of the Crown; any constable and any other person employed for the purposes of any police force; elected officials and their employees; and members of Parliament. The question that we could be challenged with is why we are starting with the police and not the politicians. Broad consideration is therefore being given to the matter at the UK level, and the Scottish Government will engage with that as appropriate.

If the offence was to be created under the bill, it would apply to constables only, which would result in piecemeal legal reform and would single the police out as the only public office holders that the provision should apply to, when a principled view would suggest that other holders of public office should be equally liable for misconduct. As I said, my officials will work with UK Government officials on the topic.

Amendment 61 would require the Scottish ministers to report on misconduct in public office within one year of royal assent, and particularly on whether there should be a statutory offence of misconduct in public office for the police and, if so, what steps would be taken to introduce it. In my view, that is not the way to make the legislation, because it could, in theory, cut across a whole range of public offices. The police might also rightly raise the question of why we were singling them out.

In all fairness, there is much to be done in this area, following a series of inquiries and reviews. However, the amendments are using a specific bill about the police to seek to enact piecemeal and knee-jerk change, rather than having a proper consultation and consideration and taking a mature and co-ordinated approach to law reform in this area for all public office holders. I therefore urge members to oppose Mr Findlay’s amendments 60 and 61, but I appreciate his interest in the area, because I think that it is important for standards in public life.

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.