Hansard

I am pleased to speak on behalf of the Criminal Justice Committee. As ever, the committee is very grateful to our clerking team, the Scottish Parliament information centre and other Parliament staff for their assistance and support during our scrutiny of the bill. I am grateful, as ever, to members of the committee for the conciliatory way in which we have worked together.

The committee gave detailed consideration to the proposals in the bill. I will focus on gross misconduct proceedings, the introduction of barred and advisory lists, the time taken to deal with complaints, the new powers proposed for the PIRC and whistleblowing.

I place on record our sincere thanks to those who told us about their experiences of the police complaints and conduct systems and provided their views on how they should be improved. We heard from people who had made complaints, as well as from a former officer who had been the subject of a complaint. Their evidence highlighted the need for an effective, fair and transparent police complaints system that works for members of the public, police officers and staff.

The conclusions and recommendations in our stage 1 report were agreed without division. However, for some members of the committee, their support for the general principles of the bill is dependent on the provision of an updated financial memorandum at stage 1.

During stage 1, the Cabinet Secretary for Justice and Home Affairs provided the committee with the most up-to-date cost estimates and gave a commitment to provide a revised financial memorandum if the bill is amended at stage 2.

I would like to highlight some of the main findings of our stage 1 report. The bill contains a number of provisions that aim to improve confidence in the police complaints and conduct systems. The committee recognises that

“the vast majority of police officers and staff are dedicated, honest and hardworking, and do an incredibly difficult job”

on our behalf. We welcome the introduction of a statutory code of ethics and consideration being given to the committee reviewing the draft code.

We also welcome the introduction of a duty of candour and the Scottish Police Authority’s consideration of whether such a duty should apply to staff. I welcome the cabinet secretary’s update in her speech regarding a duty of candour for staff.

The committee recognises that when the standard of behaviour of officers falls below what the public might expect, there needs to be accountability. A key issue that the bill addresses is that of enabling gross misconduct proceedings to continue or commence when a person ceases to be a constable. The procedures will apply when a preliminary assessment of the misconduct allegation finds that the conduct of the person while they were a constable would, if proved, amount to gross misconduct.

We heard about the impact on those who make complaints as well as on those who are the subject of a complaint when gross misconduct proceedings are not brought to a conclusion. In their evidence to us, June and Hugh Mcleod described the devastating impact on their family when an officer retired just days prior to facing a disciplinary hearing for gross misconduct. Mr and Mrs Mcleod said that that

“clearly denied us justice and had left us seeking answers over the police investigation into our son’s death.”

Former police officer Ian Clarke told the committee that if the misconduct proceedings had continued to a conclusion after he had retired, he would have a record that there had been no misconduct on his part. Mr Clarke said in his written submission:

“To be accused of something and to have no formal resolution is wrong. It allows the guilty to walk away with no consequences and the innocent to have suspicion hanging over them for the rest of their lives.”

The committee welcomes those provisions. Although there is not a specific provision in the bill, we considered what would be a proportionate length of time in which to commence gross misconduct proceedings when a person had ceased to be an officer. We concluded that

“cases should be able to commence up to 12 months after an officer has left employment and that any cases that are raised after 12 months should be subject to a public interest test.”

The committee recommends that that should be

“a clear commitment and contained in regulation.”

We also recommend that the Scottish Police Authority monitors the process over the initial years to ensure that gross misconduct cases are dealt with timeously.

The Scottish Government confirmed that its intention is that gross misconduct proceedings can continue to a conclusion, however long that takes. Those measures should provide confidence to the public that officers will be held to account for gross misconduct, and provide a conclusion for those officers who wish to clear their name.

I turn to vetting. Section 7 of the bill enables the Scottish Police Authority to

“establish and maintain”

a

“Scottish police advisory list ... and”

a

“Scottish police barred list”.

A person would be entered on the advisory list where disciplinary proceedings had been brought against them for gross misconduct either after they ceased to be a constable or where they ceased to be a constable before the proceedings were concluded. A person would be entered on the barred list if they were dismissed for gross misconduct or would have been dismissed had they not already ceased to be a police officer at that point.

The committee welcomes the introduction of those lists. They are an important vetting tool that will provide a consistent approach across police forces in Great Britain. We recommended that Scotland follows the practice in England and Wales, where the barred list is published but only relevant organisations are able to access the advisory list.

Another key issue is the time that is taken by policing bodies and the Crown Office to deal with complaints. In its report, the committee concluded:

“The evidence we received clearly indicates that the Bill, as introduced, will have little impact on the length of time taken to consider and conclude police complaints.”

I welcome the Scottish Government’s clarification that the current regulations do not prohibit misconduct proceedings from happening when there are possible criminal proceedings, and its confirmation

“that there may be a workable solution”

to address that issue in a way that does not require legislation.

The Scottish Government also confirmed that it

“is consulting with the Scottish Police Consultative Forum on”

the introduction of

“accelerated”

gross

“misconduct hearings for all ranks”

of officers under certain circumstances. Those measures are welcome; however, the committee would like further measures to be introduced to address the time that is taken to deal with complaints, and in particular to provide robust oversight and monitoring of the effectiveness of Police Scotland’s centralised professional standards department.

The committee welcome the provisions in the bill that strengthen the role of the Police Investigations and Review Commissioner. Section 11 of the bill allows the commissioner to

“carry out a complaint handling review”

without a request from the complainer, Police Scotland or the Scottish Police Authority, if the commissioner considers

“that it is in the public interest to do so”.

Section 11 also includes a requirement for the SPA and Police Scotland to respond to the commissioner’s recommendations within the timescales that are set out in the PIRC’s report.

In response to the committee’s recommendations that

“the SPA and Police Scotland”

should

“be under a duty to comply with PIRC’s recommendations”,

the commissioner welcomed

“some element of accountability for organisations in receipt of our recommendations, in respect of implementation or compliance.”

However, the commissioner also highlighted the benefits of retaining flexibility to remedy an issue in a different manner.

Section 12 provides the commissioner with a power to take over consideration of, or call in, complaints that are being dealt with by the chief constable or the SPA under certain circumstances. Those could include

“if ... the Commissioner ... has reasonable grounds to believe that ... the appropriate authority”

is not handling, or has not handled,

“the complaint ... properly”,

and

“it is in the public interest for the Commissioner to consider the complaint.”

Section 15 provides the commissioner with a bespoke power to review the practices and policies of the police generally, not just in relation to a particular incident. That would enable the commissioner to address a recurring issue that was being raised by members of the public.

Section 16 enables Scottish ministers to make regulations allowing the PIRC to access Police Scotland’s conduct and complaints electronic storage system, or an SPA electronic storage system, if required.

Those new powers for the commissioner have the potential to improve the transparency and robustness of the police complaints process, and to improve public trust and confidence in the handling of police complaints.

Finally, I turn to whistleblowing. The bill provides the commissioner with powers to audit and report on the arrangements that are in place for the investigation and on information that is provided in a whistleblowing complaint.

The committee recommended that the PIRC and the SPA should be prescribed as independent third parties that can investigate whistleblowing complaints by those working in policing in Scotland. It is important that there are relevant independent third parties for employees of Police Scotland and the SPA to report whistleblowing concerns to. We understand that that will require changes to UK legislation, and it would be helpful if the cabinet secretary could confirm whether she supports that recommendation.

The bill contains a number of measures to ensure that robust, clear and transparent mechanisms are in place for investigating complaints, allegations of misconduct or other issues of concern about the conduct of police officers in Scotland. If Parliament agrees to the general principles of the bill today, the Criminal Justice Committee, as ever, stands ready to scrutinise the bill at stage 2.