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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 the 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 the 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.

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 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.

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.

Amendments 5, 8 and 11 relate to the individual duty of candour inserted into the standards of professional behaviour and the organisational duty added to the policing principles. They follow the committee’s recommendation and my commitment in the stage 1 debate to bring them forward.

Those amendments will ensure that there is no doubt that constables must be candid in all investigations, regardless of who they relate to, by making it clear that the duty of candour is required in all investigations, including into all constables, all police staff and all Scottish Police Authority staff.

I turn to my amendments 7 and 10. Concerns were raised in evidence sessions about the duty of candour potentially interfering with the privilege against self-incrimination. Police Scotland requested in written evidence that the bill be amended to specify that the duty of candour applies only where a constable has been confirmed as a witness. In other words, Police Scotland wanted comfort that the duty does not apply when a person is a suspect in a criminal case, where the right to silence and the privilege against self-incrimination are protected. The privilege against self-incrimination is understood to encompass the right to silence and applies only to criminal cases.

In considering the request, I have accepted the essence of what is being asked for. I have ensured that it is done in a way that excludes only those who have privilege against self-incrimination in criminal cases, rather than anyone who is confirmed as a witness in a civil or criminal matter, which is a much wider category. If we were to make the duty of candour applicable only to those who are labelled as a witness, it would afford the right to silence to anyone not labelled as a witness, which would be counterproductive to the purpose of section 3 of the bill, which is to ensure that all officers are candid. For example, if a constable has seen an incident involving a colleague that concerns him but has not been identified as a witness and may never even be asked about the incident, the duty of candour should apply to him to require him to speak up and disclose the relevant information about what he has seen.

The amendments spell out what is already the case—namely, that the duty of candour is not unqualified but is subject to the privilege against self-incrimination in criminal cases—and I hope that the committee will support them.

I am afraid that I cannot support Sharon Dowey’s amendments 6 and 9, which propose adding to conduct regulations that the duty of candour

“does not apply to a constable who is suspected of having committed a criminal offence.”

The amendments do not provide a direct link between the subject matter of the criminal offence and the subject matter of a situation that the constable is being asked about. For example, a constable could be asked whether they saw a colleague kick a witness, but the fact that they are suspected, separately and unconnectedly, of a serious assault would mean that they would not be subject to the duty of candour in relation to the unrelated matter. Although it could not reasonably be implied from the bill that the duty of candour is not qualified by the privilege against self-incrimination or the general protections of the law in that area, in order to ensure that there is no dubiety, my amendments 7 and 10 make that crystal clear in response to concerns that were raised in evidence at stage 1, particularly by Police Scotland.

I do not support Ms Dowey’s amendments 6 and 9 because the essence of those amendments is accomplished by my amendments, which expressly state the legal position that the existing law already achieves. My amendments do so without disapplying the duty of candour to a whole category of constables in an entirely unprincipled way, as amendment 6 would do.

I ask members to support the amendments in my name and to oppose amendments 6 and 9.

I move amendment 5.

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 the 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—

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.

Issues in and around misconduct in public office are salient and of high interest. I have a high regard for the work of His Majesty’s chief inspector of constabulary in Scotland and I take very seriously any and all recommendations that he makes. I have been looking into matters further, as I indicated in our earlier discussion. I am afraid that I cannot support either amendment, and I hope that, when I explain why, members will see the common sense in that at this time.

As Mr Findlay said, amendment 60 would require the introduction of a new law of misconduct in public office,

“where the person in public office is a constable or police staff”,

and for that to be done within one year of the date of royal assent of the bill that we are discussing.

As I said, I am aware that His Majesty’s chief inspector of constabulary in Scotland, Craig Naylor, called for the establishment of a misconduct in public office offence for police officers and staff who abuse their position, and that he did so in his recent annual report. Mr Naylor noted that officers south of the border can be charged at common law with committing misconduct in public office and said that there is no such offence in Scotland.

There is no specific legislation in England; such offences are dealt with on the basis of case law in England and Wales. The common-law offence in Scotland of wilful neglect of duty by a public official covers some of the same ground as the misconduct in public office offence in England and Wales does.

The offence south of the border that Mr Naylor referred to is not police specific. It is widely considered to be ill-defined and has been subject to criticism by the UK Government, the Court of Appeal and legal academics.

In 2012, the Law Commission for England and Wales undertook a project that culminated in the conclusion that two new statutory offences were merited to replace the common-law offence. That report was published in late 2020, but the then UK Government took no action. I note that Mr Findlay is demanding that the Scottish Government legislate on this new offence within one year, including carrying out all the consultation and engagement that would need to take place on a sensitive area, when the previous UK Government did not do that in four years in relation to its laws.

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, would 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.