Police (Ethics, Conduct and Scrutiny) (Scotland) Bill: data protection impact assessment

Policy Aims

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, 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 Bill amends the two main pieces of legislation in the area of Scottish policing law (the Police, Public Order and Criminal Justice (Scotland) Act 2006 and the Police and Fire Reform (Scotland) Act 2012 and regulations made under the 2012 Act (The Police Service of Scotland (Conduct) Regulations 2014, and The Police Service of Scotland (Senior Officers) (Conduct) Regulations 2013, referred to jointly in this impact assessment as ("the conduct regulations").

The Bill contains 20 sections, which are organised under cross-headings.

Cross-heading: 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 Scottish Police Authority. 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.