Seòmar agus comataidhean

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.

I reiterate that I am more than happy to work with Katy Clark and Sharon Dowey in advance of stage 3.

On the concerns about the phrase “lesser obligation”, the code must be compliant with the Equality Act 2010. However, amendment 48, which seeks to add that legislation as a source for the code’s preparation, would mean that the code needed to only “have regard to” the 2010 act, which would impose a lesser obligation than is already implied. I am happy to continue to discuss matters with members.

As for Ms Dowey’s and Ms McNeill’s points on consultation, it is crucial that there is clarity for the chief constable when it comes to consulting individuals or bodies that are able to represent people who have had direct experience of the complaints process, for example. The issue is how that can be done in a way that taps into a breadth and depth of experience, such as that of victim support organisations and perhaps others, but does not place an unworkable condition on the chief constable to consult every individual who has ever had an experience or who has ever represented someone who has had a very difficult experience. I am positive that we can work our way through those issues.

The European code of police ethics covers, for example, the rights of suspects, of witnesses and of victims; it places wider obligations on policing bodies and covers a range of other matters. I would be happy to provide in writing further detail on the UN codes, the UN basic principles and the code of police ethics.

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.

We will do everything that we can to build consensus, but sometimes we must stick to our principles with a view to making progress. If we were to step back from what HMICS has recommended and the progress that the committee is looking for, that would be a step backwards, as opposed to a step forward.

It was very remiss of me, Mr Findlay, not to address the issue that you raised around whistleblowers. I agree that whistleblowers must be carefully protected, but the way to do so is by the application of whistleblowing protections, which sit elsewhere, and not by diluting vetting requirements.

I am happy to discuss more of that going forward, prior to stage 3.

I appreciate that people have seen the amendments only for a week, but that is the nature of our parliamentary process. It will cause us all to have to work hard and be somewhat testing.

The only thing that I would add is that, in all sincerity, I will continue to engage with members and stakeholders at an early opportunity.

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 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 quite confident that I will be able to agree, at least in part, with both Russell Findlay and Rona Mackay.

As I hope members are aware, I am very keen to see body-worn cameras rolled out to help to ensure that justice is served humanely and effectively for those who interact with the police and others. That is why I ensured that there was a budget settlement this year of £1.55 billion, which includes covering the costs of the roll-out of body-worn cameras. I am aware of the updates that the chief constable has given to the committee and the Scottish Police Authority on the roll-out. I think that we all agree on the importance of body-worn cameras and what they can help to deliver.

I will, of course, want to see an evidence-based assessment of the impact of body-worn cameras; I think that that is reasonable. However, placing such a requirement in the bill is not, in my view, how that should be done. It is for Police Scotland and the inspectorate body, HMICS, to assess and audit the effectiveness of body-worn cameras when the roll-out is complete. I will ask Police Scotland to report on the effectiveness of using body-worn cameras and discuss with HMICS what plans it has to provide additional scrutiny and independent oversight. I will write to Police Scotland and HMICS on the topic after the evidence session, and I urge the committee to oppose the amendments.

I am conscious, Ms Dowey, that I am about to ask to intervene on you to answer Mr Findlay’s question, which is a bit odd.

I understand the issues and the care that members have taken in this area. For me, the bottom line is that there are various views about the scope of fatal accident inquiries. As a constituency MSP, I have looked closely at the matter, not in relation to police officers, but in respect of the complexities of deaths abroad. I have looked at the coroners’ system in England and the differences there are not quite as stark in practice. Although the systems look a bit different on the surface, I think that neither system always delivers the outcomes that grieving families would wish for.

There are two issues. First—I do not want to sound clumsy or disrespectful—there is no short route to changing the process of fatal accident inquiries through the back door or through another bill. That would be a less than complete or satisfactory way to address matters, because the area would require much more in-depth consultation and scrutiny.

Tragedies happen in many professions—people who work in the health service take their lives. Certainly, I have known a number of social work colleagues who have taken their lives. Suicide stretches far and wide and it will have touched everyone in this room in some shape or form. We could get into unforeseen difficulties through the very understandable desire to address the issue that is related to serving police constables, which might create less than satisfactory outcomes because we are not looking at it in the context of a wider review of fatal accident inquiries. I am cognisant that many other professions stand in the line of duty and that the mental health of those professionals also suffers. My view remains the same—the issue is much wider.

Irrespective of one’s views on the merits or otherwise of the current legislation, what is suggested is a much bigger piece of work than can be done by trying to rectify matters by making amendments to a specific bill. I say that with respect. I am very conscious that this matter cuts to the core—it cuts deep—for many families.

When I met Kate Wallace again last week, she spoke directly to me about the importance of the information-sharing agreement. I have stressed to my officials that both the information and the agreement are of pivotal importance. Our approach to it has been shaped by the law, including the general data protection regulation, and by existing information-sharing arrangements. It is a fairly complex piece of work.

Prior to coming to the committee today, I was clear that it was really important that a package of detailed information was available, both on the guidance for the governor’s veto and the accompanying operational standards and on the draft information-sharing agreement. I appreciate that the committee is very busy, and that we are working at pace with regard to emergency release. I appreciate, too, that that causes anxiety for victim support organisations, but the nature of the terrain that we are currently operating in means that we have to take emergency action.

It might be useful for me to talk about the decision-making process on emergency release. Members will be aware, because some of the correspondence was shared with the committee, that in the first week of May I received correspondence from His Majesty’s chief inspector of Prisons for Scotland, the Prison Governors’ Association, the SPS advisory board and Ms Medhurst herself. I could not ignore that correspondence. I had further discussions with Ms Medhurst and Cabinet colleagues, and the decision to pursue this course of action with Parliament’s consent was approved at Cabinet in the few days before I made my statement to Parliament.