 Welcome to the 18th meeting of the Criminal Justice Committee in 2023. On that, we have apologies this morning from Pauline McNeill and Katie Clark joining us online. Our main item of business today is consideration of an affirmative instrument, the police negotiating the Police Negotiating Board for Scotland Constitution, Arbitration and Qualifying Cases Regulations of 2023. I'm pleased to welcome the Cabinet Secretary for Justice and Home Affairs Angela Constance and her officials to the meeting. We're joined this morning by Peter Jemison, Police Division, Graham Thomson Police Division and Louise Miller, legal directorate of the Scottish Government, and I refer members to paper 1. I'd also like to refer members to annex B in our briefing paper and thank the Scottish Police Federation for their comments. I'd like to now invite the cabinet secretary to speak to the instrument. Thank you, convener, and good morning to everyone. The Criminal Justice Scotland Act 2016 provided for the establishment of the Police Negotiating Board for Scotland, and those regulations will give effect to the constitution of the new body. The constitution is published and linked in the regulations and sets out how the new body will carry out its functions, namely to negotiate pay terms and conditions of police officers in Scotland. Our aim is to create a modern negotiating body in which consensus on the matters under its remit is the norm. However, the constitution also sets out how conciliation and arbitration should be used when all other options are exhausted. The new Police Negotiating Board for Scotland will replace the Police Negotiating Board for the UK that now only extends to Scotland. That follows on from the abolition of the Police Negotiating Board in relation to England, Wales and Northern Ireland, where officers now have their pay considered through the police remuneration and review body. The new body will become operative on 17 August 2023. To helpen from the development of the regulations, the current members of PNB, including Police Scotland, the Scottish Police Authority and staff associations, have been consulted on the detailed arrangements that are set out in the regulations. ACAS Scotland has been consulted on the arrangements for conciliation and arbitration. The views of the stakeholders have been taken into account. I can report that the PNB members agree that collective bargaining should be maintained and that they support the introduction of the Police Negotiating Board for Scotland. The regulations will give effect to the constitution of the Police Negotiating Board of Scotland, which has now been published. The regulations will supply what would otherwise be mandatory statutory arbitration rules and the regulations define qualifying cases, which are cases in respect of which ministers must take all reasonable steps appearing to them necessary for giving effect to the representations made to them following arbitration. The regulations will supply the mandatory rules that were made under the Arbitration Scotland Act 2010 and in the constitution. PNBS members have set out that the default arbitration rules under the 2010 act will not apply to the arbitration and the PNBS. Disapplying the rules will allow there to be continuity on arbitration procedures between the PNB UK and PNBS. ACAS Scotland will carry out conciliation and arbitration in line with the guidance that is set out under the constitution. Arbitration findings are binding on the PNBS and would forum the representations made to Scottish Ministers. In 2016, Parliament agreed that ministers should take all reasonable steps to implement the findings of arbitration, but there was also agreement that this should be limited to two cases each year. The regulations and the constitution set out the criteria for the two qualifying cases where ministers will take all reasonable steps to implement the findings of arbitration. There may have been other disputes that go to arbitration in any given year and ministers would consider the representations made by PNBS, but they would not be legally bound to take all reasonable steps to implement the findings. It should be noted that, since 2014, when the PNB UK was abolished in England, Wales and Northern Ireland, there has not been a need for arbitration in Scotland. Pay terms and condition claims in Scotland have been successfully agreed by the PNB. However, it is right that police officers have the protection of arbitration, set in legislation to provide the police staff associations with an agreed route to resolve disputes. Police officers are not employees, are not governed by normal industrial relations, and they cannot withdraw their labour. They therefore need their terms and conditions set out in police regulations and to have a fair mechanism to negotiate and resolve disputes. We are also currently recruiting the first chairperson of the new body, and I would like to take this opportunity to thank Ian Mackay, the current chair of the PNB UK, for his eight years' service in chairing the PNB. In these years, the PNB has agreed a range of changes to officers' terms and conditions and reached agreement each year on an annual pay award. I believe that the PNB continues our commitment to collective bargaining and gives an effective voice for police officers. PNBs will provide them with a mechanism to discuss and negotiate their terms and conditions with the organisations that fund the service in Scotland. I am happy to take any questions. We will move to questions now. I refer to a paper that the Scottish Police Federation has submitted to the committee ahead of today's meeting, in which it outlines its position and views on the proposals in the SSI. It makes reference to the proposed constitution of the police negotiating board for Scotland. It has made a number of comments around the proposal. I am not sure whether you have had the opportunity to see those comments, but I wonder whether you have had any comment to make on the points set out by the Scottish Police Federation in and around the comments that they have made. I am happy to answer any specific questions that you have in any matters that have been raised directly by the committee. On that note, I mean that they have made a number of comments. Whether or not there is scope to incorporate them at the moment, my understanding is that there is not in the SSI, but if it is the case that you are not aware of them at the moment, then perhaps we will come back to that, given that we are looking at the SSI in the format that it is at the moment. As I said, I am happy to answer any questions that the committee has. If there are matters that the Scottish Police Federation has raised, that is not a problem. That was my question. It was just if you had had sight of the submission from the Scottish Police Federation and had an opportunity to consider some of the points that they have made about the constitution. It is important to recognise that, from the Government's perspective, we want to be actors in good faith. While I referred to, in my speaking note, that there has not been a need for arbitration procedures, for example, to be utilised in the past, I consider protecting on-going arbitration arrangements, not as a sign of weakness but as a sign of strength that is absolutely imperative that, bearing in mind that police officers cannot withdraw their labour, they have access to other mechanisms. The Parliament agreed, as I referred to in my speaking note, in the 2016 act that the Government would have to take all reasonable steps to implement any arbitration agreement, if I could put that perhaps into more human speak. We absolutely would seek to, in the spirit of fairness, fulfil any obligations placed upon the Government in terms of arbitration. The wording in the legislation does say all reasonable steps. It is not uncommon for that wording to appear in the legislation. Other than extreme circumstances, the Government accepts that there should be arbitration arrangements in place that we would act in good faith and we seek to implement any arbitration decisions other than in some very exceptional circumstances. I do not think that our position has changed over successive terms of office. Thank you very much. That is helpful. I would point out that, in the submission of the Scottish Police Federation, it says that the proposals are relatively strong in our favour and, in the spirit of fairness, acceptable to the SPF. I will now open it up to other members for any other questions. Good morning, cabinet secretary, and other guests. Following on from the convener's opening line of questions, the submission from the SPF was dated 24 May 2023. It is addressed to the committee, but I wonder if, just to clarify where the cabinet secretary had sight of it and had, if the Government were intending to respond formally to the content that it is in, because it did make a number of very specific suggestions about changes to the constitution that it would like to see. I am happy to go through them in public if it is helpful, but it would be quicker and easier if the Government just responded on block to their suggestions. I wonder if the cabinet secretary was posing to do that. In terms of picking up the core issue here, it is around arbitration and the binding effect of it. The 2016 act is where we have legislated for almost binding arbitration, and that is the closest that we could get to binding Parliament and ministers. That is a real high threshold in terms of binding the Government, and I would hope that that would be of considerable reassurance to the committee and staff associations who have been consulted on the regulations and the constitution. It is important to stress that there are three levels in terms of how the PNB will operate on a practical level. The regulations, the constitution has been published and is therefore shared publicly, and the constitution is rooted in the regulations, but there is another layer below that in terms of the day-to-day operating guide. That will be developed—in fact, it is currently being developed—but that will be for all parties within the police negotiating board to come to an agreement about their own processes. It is that second one that I wanted to comment on. I presume that it is a draft of the constitution that has been published. On a number of points 3, 9, 37, 42, 43, 44 and 45 have made specific comments as to its content. I guess that the original question is, will there be scope for that constitution to be amended prior to being finalised? The issue about the constitution is referenced in regulations. We are agreeing the regulations today in which the constitution is rooted. It has been a matter for Parliament in terms of the legislation and regulation. It is now for the PNB to agree its own day-to-day operations. I will check with officials that I have articulated that correctly. I have not explained myself properly in my apologies. It is just to ensure that the very specific comments that they have made will be taken into account by the PNB as they finalise the wording of the constitution. No. The constitution is what has been published and what I have tried to distinguish between that. We have the regulations, the constitution and then there is the guide of the day-to-day operability of the working practices of the PNB. If I asked officials to give some practical examples of what will be in the guide, that might help. In doing so, perhaps they could make reference to the issues that the SPF raised, because they clearly have pre-empted some scenarios that might be problematic and therefore feel that they would need to be addressed in order to avoid any future deadlock. We will pick up specifically the point about deadlock. I have spoken effectively to the principle point and the importance of arbitration and acting in good faith. We would be accepting any arbitration decision other than very exceptional circumstances and you would expect any Government over any term to articulate that. I have also addressed the issue that regulations are for Parliament and the constitution is rooted in the regulations. The constitution has been consulted on and we have worked and negotiated on and we have come to a consensus and agreement on that. I will ask officials to address the issue of the guide and how that will be developed and the type of issues that will be addressed. Your other point, Mr Greene, was that you were worried about the arbitration process being stifled about blockers being put on that? Yes, so very specifically on that and it is worth putting on the record because this letter is a matripoly record. The feedback certainly on sections 37 and 42 of the constitution that I refer to by the SPF state that there seems to be an end quoting here, there seems to be scope for either of the sides to prevent such a matter going to arbitration or for the chairperson to decide not to refer matter to arbitration. This could lead to deadlock. It is hard to envisage the board failing to make a recommendation based on an arbitration award. It seems to open the door for either side to delay or block a PNB agreement based on an arbitration award and this would be highly unsatisfactory. The whole purpose of arbitration is to avoid deadlock and the whole purpose of having an independent chair is that if there is an inability to agree they bring sides together and normally it would be for both sides to agree that the matter needs to go to arbitration, but if the independent chair thought that one side or the other was blocking procedures, they therefore, in terms of the powers of the chair, have the ability to kick off the arbitration process. I will hand over to officials to give Mr Dymour more detail. Peter. The independent chair is there to ensure that the process can be taken forward independently and it would be for the chair to decide that all discussions have failed and the failure to agree would be taken to arbitration. We do not see that there would be a total block when there was a total failure in the process. The other issues that I have seen from the federation are real practical issues of how the body would manage certain issues about non-members being at committee, working groups and meetings. That happens at the moment. It will be set out in the PNB guide that the chair can invite or the chairperson of a working group to invite non-members to meetings. The other issue that was highlighted was about disagreements on how previous agreements were being implemented. That is quite a technical process, so we did not think that that was for the constitution. The constitution has been consulted on everybody and it was agreed that that would go into the guide. If there is a more technical discussion about how we implement an agreement, there will be a process put in place where the sides will get together and discuss it, and there will be a proper process for that in the guide. You are right. I refer to a request to the size of me, nominate persons who are not necessarily representatives to serve on such committees and working groups, but with permission of the chairs, I presume, that permission will be carried forward in the new set-up. The reason why it is important for us is that we have seen in the past year or so where there has been a disagreement on pay settlements. Of course, the cabinet secretary is right to raise the fact that they cannot perform the same type of strike action, for example as other public services have or are threatened to. However, they have taken industrial action of a different type and that has had an effect on clearly their ability to carry out certain functions and resorting back to principle statutory duties and remove goodwill, if you like. We have seen that happen already. I wonder if the new scenario is more or less likely to produce agreement on pay knowing that there is a history of a disagreement on pay and whether there will be any alterations to what action police can and cannot take in the event of a dispute or indeed a deadlock. There are no changes in terms of what police officers can and cannot do in terms of whether that is withdrawal of goodwill. We all know that they cannot withdraw their labour because they are office holders not employees. The agreement that we have reached in terms of those regulations is very much about continuity of a previous arrangement. Obviously, there is public scrutiny of those regulations and the constitution. It certainly gives ministers an opportunity to say that we will participate in any process as fair actors. We are committed as a Government to collective pay bargaining and the principles of fair work. In many ways, that is a legacy agreement. We agreed that the nuts and bolts of this in 2016, but now that there will be a new chair, we need to move to a Scotland-only arrangement. Otherwise, I will have to ask the Prime Minister to appoint the new chair. We have used a system, a UK-wide system, that has only been operable for Scotland for some years. Some of this is just about the practicalities. I understand that. I think that the problem with the continuity is what people would be concerned about is the continuity of the status quo, where we end up in a scenario where we have annual pay bargains that end up in industrial dispute and the removal of services and goodwill by officers. The purpose of a PMB is for that negotiation to take place. I am not speaking about specific pay claims here or specifics, because where there are processes, they have to be respected and there has to be an integrity to the process. It is for those negotiating partners whether they are doing annual pay deals or whether they are seeking something longer term. Some parts of the public sector have negotiated multi-year or two-year pay deals, so that is just about ensuring that we continue to have solid arrangements in place that are fair and in particular fair to police officers who cannot withdraw their labour. Indeed, thank you. I thank that clarity. My final question is what role would the Scottish ministers play in any of those proceedings? On how the PMB currently works, you have all the sides. There are the staff associations, and you have the SPA Police Scotland, and the Government is there with officials. Then the PMB makes recommendations to ministers. That is the size of it, is it not? I have not missed anything out. Is the PMB making recommendations to ministers to approve, agree or disagree, or is it the final decision that the PMB's recommendations have presented? We would seek to fulfil what the PMB agreed. Because you supply the resource budget, you have to sign off the check. We are part of the negotiating process, although I am not personally sitting in the PMB for all sorts of reasons that you would understand. Does the Government have any override function at all in terms of decisions that are made? If all sides cannot agree, it goes to arbitration, which we have always avoided in the past. That does not mean that we will not go to arbitration in the future. I do not view arbitration as a negative. I would view it as a strength and a weakness that we have built into the system. The best way to describe it is a tripartite arrangement, so the agreement is between Police Scotland, SPA and SG. They are the three partners that we need to from the employer side, if you like. We would have to agree to find. In the policy note from the Scottish Government, the instrument allows for the preparation and publication of the Constitution of the Police Negotiating Board for Scotland, but, if I understand you correctly, that has now been published. The Constitution has been published rather than this allows for the preparation and publication. The Constitution is linked and has been published so that it forms part. It comes under the regulations, but it has already been published so that it is in place for the regulations. The purpose of the instrument allows for the preparation and publication, but it has already happened. It has been published. The Constitution was consulted through the members and published so that, as soon as the regulations come into place, the Constitution is ready. The Constitution was submitted to the Criminal Justice Committee. Are we at the site of that? It is a link of the regulations, so it is part of the regulations. It is part of the package, when they see me, but the regulations, the policy note, it is referenced. It was the date that I have got, and this is May 2023. I know that Jamie Greene has touched on this already, but the Scottish Police Federation submission to the committee has the Government seen that. Have you talked about the correspondence May 24? Yes. May 23? Yes. It effectively raised five points about the Constitution, one of which, in fact, could probably deal with the other four in that it talks about the first section 3 that the board would be allowed to consider matters affecting its constitution. Has that been listened to and rejected by the Government, or is this news to the Government? No, it is not news to the Government, but it is a matter for Parliament in terms of law and regulations. The lawyer will keep me right, but it would not be a matter for the PMB to be changing its constitution, so that is the purpose. The constitution has just been published after consultation. So it is published May 2023? Sure, but it could include if you were so minded the issues that the Federation has raised, the very specific issues. I think that we are, with respect, happy to repeat or go over in more detail any of the issues. I think that it is well within Parliament's rights here, bearing in mind the 2016 act, and that it is for Parliament to pass regulations. I do not think that it would be the norm for the PMB to be changing its constitution. It could, of course, come back to ministers who, at some point, in the fullness of time, if there was something inoperatable about the constitution that could be changed. I am very conscious that there is time and effort being invested around coming to an agreement around the constitution. MSPs would be well within their rights to be somewhat concerned that, if those matters were not dealt by Parliament via regulations, if matters of constitution for this very important body were dealt in a more ad-hoc way. We cannot amend what is in front of us today. The Scottish Police Federation has brought to us five quite specific concerns. I am still not entirely clear as to whether they have been considered by the Government because they do not feature in the constitution that has now been published or whether there is any scope for the Government to look at that again and amend the constitution. I think that we have the highest level of expectations on binding arbitration that is possible on the Scottish Government. That was one of the issues raised by the Federation. In my view, I have addressed the matter to committee around who, where and when is appropriate for regulations vis-à-vis constitutions. In terms of the issue about 37A and B in the correspondence, in terms of being able to bring in non-members of the board, by that I assume that people mean different experts to come and give advice or an input. Those things currently happen, and that would be a matter for the PNB in its normal day-to-day process, as opposed to setting that out in a matter of the constitution. It would be my view that we have addressed those points, and I am happy to continue to do so with committee. The nature of the regulations and how they cannot be amended is, of course, rooted in the 2016 act, but I will check in case officials want to add anything. Just to make it clear that, under the 2016 act, the constitution has to be given effect to by-parliament via regulations. What those regulations do is give effect to the constitution that was published recently after consultation with the various parties. The constitution is not set in stone forever, and it can be revised, but any revisions would have to take place via the same process, so that means that they would need to be referred to in regulations that would go through a parliamentary process. The same consultation process, as was followed for those regulations, would need to happen again for any revisions. That is the way the process works. Just for clarification, when you say parties, you are talking about the various entities who are interested in this, not political parties. The Scottish Police Federation, presumably at that stage, made those points, and whatever the decision-making process arrived at was the constitution as published. What they are now referring to is what is under the bridge, but there is no real. I do not know if they did make those points, and policy officials would be able to confirm that. Just to say that I met the Scottish Police Federation, I must have to check the date of my diary, but it is not that long ago. It could have been three weeks ago, and these issues were not raised with me. I have seen the letter that was sent to committee on 24 May. I did not see it on 24 May, but you would not expect me to be privative correspondence that is sent to committee. I am slightly uncomfortable with the fact that they have said that they have made a couple of comments in their submission about this being weaker than what they would have liked, although they are dredgingly accepting of it. They make some very specific points, and I am still not entirely clear whether there is any mechanism for the Government to look again at those points. Not today, perhaps in the fullness of time, if the PNB was finding that any of those matters were in some way affecting their substantive business, my view here and now, and I am just going to put it direct, is that we have addressed those matters. There is nothing raised in those matters that would prevent the passing of the regulations. I do think that some of the issues would certainly be matters for the guide that would be developed in consultation with all PNB members. I think that some of those issues are much more about the day-to-day working of the PNB, so you do not need to have in the constitution that non-members can come and make representations to a sub-committee or to the main PNB. If I can come in and clarify just the picking up point that you were asking about in relation to what are the options today, as it were. Obviously, we are aware that the Federation has made a number of recommendations to amend the SSI. The cabinet secretary has pointed out that it is not possible for our committee to do that in so far as SSIs come to committee in their form, as they are, and either we agree them or we don't. The only option available to members if members wish to see changes is to vote against the motion this morning or to see if there is scope for the SSI to be withdrawn and brought back in a revised version. I think from what you have been saying, cabinet secretary, that is not something that you would be mindful to do. I hope that that provides some clarity. I am going to bring in Rona Mackay, if I may, and then I will come back to Jamie Mackay. I think that, with respect to my colleagues, they are making this much more complicated than it needs to be. I think that the cabinet secretary and our officials have clearly stated that this is about bringing continuity and a fair process for police officers in Scotland. I think that we have gone down a rabbit hole a bit here with all these questions, so I am quite content for this to go ahead. The rabbit hole that we are going to is based on the evidence that we have in our committee papers from one of the leading protagonists of the negotiations. I think that it is absolutely right that we raise them, given that they are not here to give us evidence prior to this. I think that the problem that we have is more of a procedural one. From what I can understand, there is a potential to revise the constitution, but that would need to be done under regulation. What is the point of passing a regulation to understand the constitution as it is now, knowing that there are stakeholders who will see changes to then have to come back to Parliament with future regulations with those changes? Why do not we do it in one go? The better thing for the Government, in my view, would be to have that discussion with those who have presented his evidence. If there are any necessary changes to the constitution that have to be made, come back with regulation that we do as a one-hit wonder. I have no problem with the regulation, but I do have a problem with being asked to understand the constitution by which clearly some stakeholders have problems with. Any other members want to come in? I agree with Rona that we all want a system that helps police officers to get fair pay settlements that goes without saying. As for our rabbit hole, I think that it is perfectly proper that we ask these questions, because we have not even seen as a committee the constitution that is going to be adopted. The papers suggest that this is going to be published without now discovering that it has been published. I fully agree with Jamie that if we are going to or rather to rubber stamp this today, it would be a missed opportunity for the Government to go back to the Scottish Police Federation and just address these points. I think that it is probably what you are visiting. Just to try and pull this together, I appreciate the points that have been made by members and the cabinet secretary's responses to those. It is probably important to clarify that what the Federation seems to be seeking is that the wording of the constitution be amended. I think that what we have heard and make a specific reference to the update from Louise Miller was that down the line, the constitution can be amended. That would be a separate process from agreeing the SSI in its current form today. I have no objections to answering any questions brought forward by committee members. Let me respond to the convener in a way that is helpful and clear. I will do my best to be succinct. The process in which we are all now following was set in the 2016 legislation. There was with the papers in terms of the constitution, people may or may not choose to read links or to print links or whatever, but the information has been made available. There are many more ways in which I can commit to the way in which the Government values and sees the importance of arbitration and, as always, working in good faith and as a good actor. There are some matters in the correspondence from the Police Federation that could be addressed through the guide, as agreed by all the PNB members. I am conscious and, of course, with the great respect to the Police Federation, who my understanding was that they were certainly broadly content. There are other partners and other staff associations that were involved in the process. They have not made any representations to the best of my knowledge to committee members. We have a situation in which people are happy to move forward. As with any set of arrangements, people are, of course, within the right of the Police Federation or any other party to be boring down into the detail, but that will, in my view, be a matter for the guide in which all partners will work collaboratively to develop. It is, convener, time that we moved on to have a police negotiating board for Scotland, as opposed to using a legacy arrangement of a UK body. If I may, the police negotiating board scenario with the protection of arbitration bill is far preferable, in my view and in the Government's view, to a police pay review body that exists down south, which is not a negotiating body and which can make recommendations to the Home Secretary because it is accountable to the Home Secretary. Of course, there is a pattern there of recommendations not being accepted, and I think that I have put on record in the strongest possible term that we want to and will continue to enter all of this in good faith and accept the principles and purpose of arbitration. That has been helpful and provided some clarity for members. On that note, I will now move on to inviting the Cabinet Secretary to move SSI number S6M number 08783 that the Criminal Justice Committee recommends that the Police Negotiating Board for Scotland, constitution, arbitration and qualifying cases, regulations 2023, be approved. The question is that motion S6M 08783, in the name of Angela Constance, be agreed. Are we all agreed? Yes, we are all agreed. Okay, thank you very much indeed. I finally invite members to agree to delegate to me and the clerks, the publication of a short factual report on the SSI. Thank you very much indeed Cabinet Secretary and officials for joining us today. Thank you. I will have a short pause to let the cabinet secretary read. In fact, that concludes our business for the morning. There is no formal committee meeting next week as planned. I will close the meeting.