Police (Ethics, Conduct and Scrutiny) (Scotland) Bill: business and regulatory impact assessment

Policy Objectives of The Bill

The overarching policy objective of this Bill is to ensure that there are robust, clear and transparent mechanisms in place for investigating complaints, allegations of misconduct, or other issues of concern in relation to conduct of police officers in Scotland. The legislation will embed good practice, and underline the importance of maintaining the high standards expected of Scotland's police officers.

Police Scotland operates under the principle of policing by consent, where officers must act in a way that secures and maintains the respect and trust of the public and respects human rights, working to secure fairness and access for all. Police officers and police staff work tirelessly to protect and support Scotland's communities. If the conduct of officers and staff falls short of expectations, it is essential that the public has trust in the processes in place to deal with complaints and allegations of misconduct. The Bill underlines the importance of police officers maintaining the high standards of behaviour and conduct expected of them.

The 20 sections of the Bill are organised under cross-headings.

Cross-heading: Ethics of the Police

This cross-heading concerns the Ethics of the Police. The provisions under this cross-heading put Police Scotland's existing Code of Ethics on a statutory footing and confers a duty on the Chief Constable of Police Scotland with the assistance of the SPA to prepare, consult widely on, and publish the Code. This also gives power to the Chief Constable to revise the Code when necessary.

This portion of the Bill also gives legal recognition to a duty of candour on individual police constables. It also adds to the policing principles a requirement that the Police Service of Scotland will police in a way which is candid and co-operative in proceedings, including investigations against constables. Introducing an explicit duty of candour on individual constables in the Standards of Professional Behaviour by which the conduct of police officers is measured sets an organisational expectation that officers will uphold the values of policing by consent, whilst maintaining the trust and faith of the public in the execution of their duties. This makes clear on a legislative basis the need for police officers to act with integrity, fairness and respect. Furthermore, the individual and organisational duties reinforce in statute the need for a culture where officers are expected and encouraged to co-operate fully with investigations and answer questions based on their honestly held recollection of events.

Whilst there is currently an expectation that constables will positively assist in such proceedings, the objective here is to make the position clear to police officers and the public - that the service as a whole will give every assistance after a serious incident involving or about the police, in a way which is candid and co-operative.

Cross-heading: Police Conduct

This cross-heading of the Bill is concerned with procedures for dealing with certain types of Police Conduct. It addresses a perceived gap in existing legislation by clarifying that liability for any unlawful conduct on the part of the Chief Constable sits with the SPA. In doing so it aligns the treatment of unlawful conduct by the Chief Constable with the existing treatment of unlawful conduct by other police officers.

The provisions under this cross-heading of the Bill give the PIRC a greater role in relation to misconduct proceedings, which will subsequently be set out in secondary legislation. The intention is to clarify and ensure consistency in the statutory preliminary assessment function part of the process, enhance independent scrutiny, remove any perception of familiarity, as well as avoid any duplication of functions or associated delay. This differs from the current conduct regulations, which state that if the SPA receives a complaint alleging senior officer misconduct, it assesses whether there is a case to answer. If so, it will be referred to the PIRC for an assessment by the Commissioner, unless the assessment by the SPA determines the alleged actions may be criminal, in which case it is referred to COPFS.

This cross-heading of the Bill also contains provision which ensure gross misconduct proceedings can continue or commence in respect of persons who have ceased to be constables. Ensuring proceedings reach a conclusion will improve public confidence in the police complaints and misconduct process, provide greater transparency and accountability, as well as strengthen public safety by ensuring former officers are placed on barred and advisory Lists. The establishment of a Scottish police barred list and Scottish police advisory list are also set out within the Bill. The creation of these lists will enhance vetting procedures across Great Britain as a whole and stop those who do not meet the high standards expected of police officers from gaining employment in policing. This will bring Scotland in line with England and Wales and provide a consistent approach across jurisdictions in Great Britain.

This portion of the Bill also seeks to amend legislation around the misconduct procedures for senior officers to ensure the process is open and transparent, and provide the public with confidence that senior officer misconduct cases are taken forward through an impartial process. In effect, this means a newly structured misconduct panel would hear evidence of misconduct and determine whether the conduct forming the allegation is related to that of a senior officer and whether that conduct constitutes misconduct, gross misconduct or neither.

This portion of the Bill also ensures that the current internal appeal processes set out in conduct regulations under section 48 of the Police and Fire Reform (Scotland) Act 2012 ("the 2012 Act") will be revoked in respect of senior officers and that new regulations will be made containing provision which will provide senior officers with a right of appeal to a Police Appeals Tribunal (PAT), in conduct cases only, in relation to any finding of disciplinary action against them.

Cross-heading: Functions of the PIRC

This cross-heading of the Bill concerns the Functions of the PIRC. It seeks to clarify that the PIRC's investigatory powers into criminal offending (as distinct from complaint handling, investigations into serious incidents or senior officer misconduct functions) should apply to those who were officers or SPA staff at the time of the act being investigated who have since resigned or retired or, were off-duty at the time the incident occurred. It also clarifies the PIRC's investigatory powers into deaths involving a person serving with the police.

This portion of the Bill also makes clear that police officers and staff who experience poor service, which affects them in their personal capacity (as opposed to their capacity as a constable or member of staff) are able to make a complaint about the police to the PIRC.

Whilst the PIRC currently have the ability to make recommendations to Police Scotland regarding the handling of individual complaints, the Bill seeks to put into statute this function alongside a responsibility that the outcomes are published and SPA or the Chief Constable (depending on who the recommendations are directed towards) respond to any recommendations. In doing so, this will build public confidence in policing by providing reassurance that there is an independent oversight body, the PIRC, who can conduct an independent investigation in the most serious non-criminal complaints at any time, if the complaint in question has not been properly considered by Police Scotland.

Furthermore, in order to support Police Scotland to improve guidance and practices from recommendations made by the PIRC, the PIRC will have a specific new power, similar to that of the Police Ombudsman for Northern Ireland (PONI), to review a policy or practice of the SPA, the Chief Constable or Police Scotland, where the PIRC considers that it would be in the public interest.

The provisions under this cross-heading of the Bill also seek to provide the PIRC with a power to take over consideration of (or call in) complaints being dealt with by the Chief Constable or the SPA. The criteria applied to calling in is to vary dependent on the circumstances. By placing this in statute, this will strengthen the role of the PIRC and enable greater scrutiny of Police Scotland.

Furthermore, this portion of the Bill seeks to provide the PIRC with the ability to audit the handling of whistleblowing complaints dealt with in the first instance by Police Scotland and the SPA. It has no impact on employment rights, and seeks to improve the transparency of processes around how public interest matters are investigated. This, in turn, will encourage people to speak up when they see wrong-doing. It also provides an opportunity for Police Scotland and the SPA to take on board learning and address issues arising from concerns raised.

The provisions under this cross-heading also make arrangements for the PIRC to investigate serious incidents or allegations of criminality involving police officers from territorial forces other than Police Scotland, when undertaking a policing function in Scotland, and to put in place reciprocal powers for other UK jurisdictions.

In addition, this portion of the Bill sets out the legislative powers that can be used to make further legislation to enable the PIRC to have direct access to Police Scotland's complaints database – Centurion – to audit and review files necessary to their function. Ensuring the PIRC can meet their statutory functions to carry out contemporaneous audit of the police case management system independently and remotely will improve efficiency, transparency, independence and public confidence in the police complaints process.

Cross-heading: Governance of the PIRC

This cross-heading of the Bill seeks to add to the Governance of the PIRC, via the creation of a statutory advisory board. This will provide a greater degree of confidence in the scrutiny of the decision-making process, and improve accountability and transparency.

Rationale for Government intervention

The Scottish Government is making this proposal to provide greater clarity around the police complaints and misconduct processes, and ensure there are robust, clear and transparent mechanisms in place to investigate complaints or other issues of concern. The legislative proposals will embed good practice and underline the importance of maintaining and exceeding the high standards expected of Scotland's police officers, further strengthening public confidence in policing.

The Bill aligns with the recommendations made by Dame Elish Angiolini in her Independent Review of Complaints Handling, Investigations and Misconduct Issues in Relation to Policing.

This work falls under responsibility of the Police Division, therefore this work is connected to National Performance Framework performance indicator: "perceptions of local crime rate". There is a substantial amount of information provided to the measure which the Scottish Government use to evaluate progress towards the objectives of the National Performance Framework. In relation to this Bill, the aim to improve transparency and accountability of policing bodies to the public, contributes to public trust in the police.

Consultation Within Government

The following teams were consulted and provided input to the consultation paper within the Scottish Government:

• Police Division
• Access to Justice Unit
• Victims and Witnesses Unit
• Justice Analytical Services
• Communications Division
• Equality Unit
• Human Rights Policy
• Justice Directorate
• Scottish Government Legal Directorate

In addition, extensive collaboration took place with the Community Safety Unit, particularly on provisions relating to the Police Investigations and Review Commissioner (PIRC).

Public Consultation

The public consultation ran for 12 weeks between May and August 2022. A partial BRIA^[4] was undertaken in advance of the consultation. The following organisations took part in discussions in advance of the full public consultation to share views on how to take forward the recommendations set out in Dame Elish Angiolini's review:

• Crown Office and Procurator Fiscal Service (COPFS)
• Police Scotland
• Scottish Police Authority (SPA)
• Police Investigations and Review Commissioner (PIRC)
• HM Inspectorate of Constabulary Scotland (HMICS)

In addition, police staff associations took part in discussions in advance of the consultation through the Scottish Police Consultative Forum and individual meetings and provided responses to the public consultation. Other groups were made aware given the opportunity to provide feedback and engage in engagement sessions regarding the consultation:

• Criminal Justice Committee
• Equalities, Human Rights and Civil Justice Committee
• Scottish Biometrics Commissioner
• Safe Glasgow Partnership
• Scottish Women's Rights Centre
• Scottish Human Rights Commission
• Scottish Public Service Ombudsman
• Lord President of the Court of Session
• British Transport Police
• Scotland's Campaign against Irresponsible Drivers
• Police Ombudsman for Norther Ireland
• People Experiencing Trauma and Loss (PETAL)
• Coalition for Racial Equality and Rights
• Victim Support Scotland
• Scottish Courts and Tribunal Service
• Law Society of Scotland
• Faculty of Advocates
• Amnesty International
• Rape Crisis Scotland
• Minority Ethnic Carers of People Project
• Action against Scotland
• Scottish Refugee Council
• Citizens Advice Scotland
• Just Right Scotland
• Scottish Youth Parliament
• Community Justice Scotland
• Fair Justice System for Scotland
• National Association of Legally Qualified Chairs
• COSLA
• Audit Scotland

The consultation received 55 responses, 33 of which came from individuals and 22 came from individuals on behalf of organisations.

Overall, the responses to the consultation were broadly in favour of the recommendations. Respondents generally expressed support for recommendations that would promote greater transparency and impartiality in policing. This included support for the members of the public to be included in any oversight, investigation or review bodies, while excluding those with a policing background. This was on the basis that many respondents considered it necessary to improve impartiality and public confidence in the processes. There was also broad consensus for clarifying police responsibilities and standards, such as with a statutory Code of Ethics and duties of candour and co-operation.

Business

The provisions in this Bill affect policing organisations and therefore the Scottish Government do not consider this Bill to have direct or indirect impacts on commercial businesses and therefore engaging with businesses across Scotland was not prioritised during the consultation period. Third sector and public support agencies who support individuals to raise complaints against the police or are victims or witnesses of crime were engaged with on an individual basis and many responded to the public consultation, such as Victims Support Scotland.

Options

Option 1 – Do nothing

Under this option, the Bill will not be introduced and legislation will remain as is currently in place. This would be at odds with the commitment made by then Cabinet Secretary for Justice and Lord Advocate to accept the majority of Dame Elish Angiolini recommendations.

Option 2 – Bring forward primary legislation

Under this option, primary legislation would be brought forward to ensure there are robust, clear and transparent mechanisms in place for investigating complaints or other issues of concern in relation to policing in Scotland.

The options were appraised through an assessment of their ability to deliver the following policy intentions:

• Ensuring there are robust, clear and transparent mechanisms in place for investigating complaints or other issues of concern in relation to policing in Scotland.
• Ensuring Scotland's citizens and communities have trust and confidence in the policing system and the structures that underpin it.

Both options have impacts for some or all of the following bodies:

• Complainers (members of public, police officers, former police officers)
• Police Scotland
• Scottish Police Authority (SPA)
• Police Investigations and Review Commissioner (PIRC)
• His Majesty's Inspectorate of the Constabulary Scotland (HMICS)
• Crown Office and Procurator Fiscal Scotland (COPFS)
• Scottish Police Federation (SPF) and other staff associations
• UK Government, Welsh and Northern Irish Assemblies
  

A full set of impact assessments have been undertaken to assess the impacts on protected characteristics, data protection and human rights.

Benefits

Option 1 – No Change

There are no benefits to Option 1. Recommendations made in the Dame Elish Angiolini review which do not require legislative change have been progressed in collaboration with policing organisations since the review's publication in November 2020. The Scottish Government will not be able to fully deliver its commitment to implement the majority of recommendations if legislative change is not taken forward. This will mean that many issues identified with existing policing practices and policies cannot be adjusted to ensure increased transparency in the police complaints process, and strengthen public confidence in policing.

Option 2 - Bring forward primary legislation

By bringing forward primary legislation the Scottish Government will deliver the commitment made by then Cabinet Secretary for Justice and the Lord Advocate to accept the majority of Dame Elish Angiolini's recommendations. It also delivers the 2022-23 Programme for Government commitment to introduce a Police Complaints and Misconduct Handling Bill.

The Scottish Government is committed to supporting the police service, and to ensuring Scotland's citizens and communities have trust and confidence in the policing system and the structures that underpin it. The vast majority of our police officers and police staff work tirelessly to protect our communities. However we have to recognise that things do, at times, go wrong. It is in everyone's interests – from police officers and staff to the general public – that we have robust, clear and transparent mechanisms in place for investigating complaints or other issues of concern. Failure to legislate on this important issue could put Scotland's citizens at risk, as well as damaging the Scottish Government, as well as policing generally, reputation.

The Scottish Government and policing partners have already delivered 58 out of 111 of Dame Elish Angiolini's recommendations, providing a strong platform on which to drive meaningful improvement via legislative change, in collaboration with partners across the policing sector here in Scotland. Bringing forward primary legislation will support this Government's commitment to ensuring all our public services are accountable, transparent and trusted, thereby strengthening Scotland's policing and justice system, and reaffirming our commitment to a model of policing by consent.

Overall, by bringing forward legislation we will strengthen the police complaints and misconduct systems; provide clarity and transparency on the process for lodging complaints and how complaints will be dealt with; and presents an opportunity to reconcile with those who've had a poor experience of the police complaints system.

Conclusion

The conclusion is to progress option 2.

Costs

It is anticipated that there will be costs associated with option 2. These are set out in more detail in the Financial Memorandum but are summarised below for ease.

Regulations will require drafting and will be developed in conjunction with policing partners, through the Scottish Police Consultative Forum. It is unlikely that it will be possible to draft these until after the Bill is enacted, when any further work required can be fully considered. The changes to regulations will not come into force any earlier than financial year 2025/26.

It is anticipated that the Bill will lead to an overall increase in costs for policing bodies, in particular PIRC and Police Scotland. This may be offset in part by savings for the SPA as some responsibilities transfer from the SPA to the PIRC. Costs in the form of legal fees may also be incurred by former police officers and staff associations, as a result of a greater number of hearings taking place, and proceedings continuing until an outcome is reached.

Many of the Bill's provisions will require secondary legislation to be fully implemented. These are discussed individually at the end of the Financial Memorandum and are not considered specifically within the Bill provision costs. The provisions in the Bill will enable Scottish Ministers to make or revise regulations to take these forward, and therefore it is not possible to provide a full assessment of costs or savings until the regulations have been agreed. However, to ensure transparency and help aid understanding of the overall costs and savings, where possible the relevant details and estimated data have been included in this Financial Memorandum.

Table 1: Estimated ^[5] costs for provisions.

Overall	Annual Ongoing costs*
	Minimum	Maximum (including immaterial costs)
Scottish Courts and Tribunal Service (SCTS)	£0	£10,340
Scottish Government	£0	£0
Total Scottish Administration	£0	£10,340
Total Local Authorities	£0	£0
SPA (includes Police Scotland)	£131,340	£259,000
PIRC	£389,134	£576,134
Other (Staff Associations)	£0	£177,000
Individuals (collectively)	£0	£392,000
Total other bodies, individuals & businesses	£520,474	£1,404,134
Total	£520,474	£1,414,474

*plus one off or intermittent costs of £41,000 as detailed in the Financial Memorandum

Regulatory and EU Alignment Impacts

This legislation does not have regulatory or EU alignment impacts as this Bill is focused on the Police Service of Scotland, with minimal impacts across jurisdictions affecting specific and infrequent circumstances which include officers from other forces other than Police Scotland.

Intra-UK Trade

This measure is not likely to impact on intra-UK trade, since there is no trading aspects included in the scope or provisions of the bill.

International Trade

This measure is not likely to impact on international trade and investment, since there are no trading aspects included in the scope or provisions of the bill.

EU Alignment

This measure is not likely to impact on the Scottish Government's policy to maintain alignment with the EU, since the scope of this Bill is focused on the Police Service of Scotland, with minimal impacts across jurisdictions affecting specific and infrequent circumstances which include officers from other forces other than Police Scotland.

Scottish Firms Impact Test

As described above, this Bill will impact policing organisations, officers, staff associations, individuals who complain against the police, witnesses for misconduct and gross misconduct allegations and investigations, and, in specific and infrequent circumstances, officers from other jurisdictions who are required to operate either in Scotland or alongside Scottish officers. Therefore there will not be an impact on Scottish firms as there is no element of the Bill which affects businesses.

Competition Assessment

As described above, this Bill will impact on policing organisations. Therefore there is no requirement to assess competition between Scottish businesses as there is no provision in the bill which affects businesses, or their competitiveness either between each other or between other countries.

Consumer Assessment

Consumers are not affected by this Bill. Instead the Bill affects complainers, either officers or members of the public. Data available indicates volumes of complaints and investigations received by Police Scotland and PIRC are increasing. In Quarter 2 of 2022/23 a total of 3,343 complaints, as noted in SPA's Performance Report, were received from members of the public during the year to date. Additionally, allegations of discriminatory behaviour are increasing year on year. This could indicate a confidence in the organisation to address concerns raised. However, information is not available on resolutions to those allegations.

Test Run of Business Forms

This Bill will not introduce any new forms for business to complete, therefore this is out with scope.

Digital Impact Test

The provisions of the Bill do not change digital technologies (including platforms) and markets. Nor are transactions included in the provisions set out in this Bill. They adjust mechanisms already in place and used by policing organisations, such as Police Scotland's Centurion database.

The provision relating to an existing database - Centurion - has a digital aspect as it concerns policing organisations' ability to access certain information contained within the database. The bill ensures that there are powers to make secondary legislation requiring that the data owners - Police Scotland - provide PIRC staff access to the database when required and this is provided remotely and unsupervised which is different to existing practices. This will ensure PIRC have independent, direct and supervisory access to Police Scotland's complaint database, Centurion, to carry out their statutory functions to audit complaints remotely, thus improving accountability and transparency of processes in place to make complaints.

Legal Aid Impact Test

Noting the 2022-23 Programme for Government commitment to introduce legislation to provide a modern legal services regulatory framework for Scotland with consumer interests at its heart, we are content that the Bill will not adversely affect the legal aid scheme nor the legal aid fund.

Enforcement, Sanctions and Monitoring

The Bill does not require public enforcement and imposes no sanctions. Any disputes concerning the rules in the Bill will be resolved by means of litigation by the affected parties.

Implementation and Delivery Plan

The Scottish Government intends to take forward this legislation in the current Parliamentary session.Secondary legislation to amend existing regulations, or make new regulations will then follow, giving due consideration to consultation and engagement.

Post-implementation Review

A review of whether the legislation is still fit for purpose will be undertaken within 10 years.