 Good morning and welcome to the third meeting of the Public Audit and Post Legislative Scrutiny Committee in 2018. I'd like to welcome Daniel Johnson, who has joined us for this meeting this morning. Can I ask everyone in the public gallery to please switch off their electronic devices or switch them to silent mode so that they don't affect the committee's work this morning? 1. Decision on taking business in private. Can I have agreement to take item 3 in private, please? Agreed. 2. Is the 2016-17 audit of the Scottish Police Authority. We will now take evidence on the Auditor General's 2016-17 audit of the SPA. I welcome Andrew Flanagan, former chair of the Scottish Police Authority, John Foley, former SPA chief executive, David Hume and Dr Nicola Marchant, both current board members of the Scottish Police Authority. The purpose of today's meeting is to take oral evidence on the Auditor General's 2016-17 audit of the SPA. Some members may also wish to ask questions about other governance issues that have emerged since the audit was published. I will make clear that the Police Investigations and Review Commissioner, or PIRC, is carrying out on-going investigations into senior police officers under a statutory process. Committee members and witnesses should not say anything that could potentially compromise those investigations. I am now going to open for questions. I am going to start with the first question myself. Mr Flanagan, there has been much publicity, things said in public, and indeed a statement from the cabinet secretary in the chamber regarding your meeting with him in early November. Can you please give us your account of those events? It surrounded the situation at the end of October, the chief constable's leave was under consideration. The leave had been agreed late August and early September, but it was subject to a four-weekly review that was coming up at the early part of November. The chief constable indicated in a number of ways that he was fit and able to return to work. He had requested permission to do some work for the National Police Chief Council. Some of the other things that had been agreed at the time of his leave seemed to be no longer the case, the stress, the health issues that he was under, and the distraction created by the complaints themselves. Those things seemed to have abated. The board of the SPA had to take a view as to whether or not the terms of those leave conditions had now been satisfied and whether or not he should return to work. That was the discussion that we had. We concluded that the temporary leave conditions had been fulfilled and that he was therefore to be considered for a return to work. We would also have to consider whether or not suspension would have been appropriate, because that would have been an issue that we would have to have faced when he did return to work. We talked through those decisions and how we would have come. There are only three options open to the SPA in those situations. One is that the individual can remain in post. One is that they can have restricted duties or the other is suspension. I should stress that suspension is not any indication or implication of wrongdoing or guilt. In terms of suspension, there are only two considerations open to the SPA. One is whether or not there is any risk of interference with the investigation or whether it is in the public interest to suspend. We discussed those issues and came to the conclusion that suspension would not be applicable at that time. Therefore, we took the decision that we should invite the chief constable to return to work. I should stress that the leave of absence was at the request of the chief constable. It was not the SPA who put that in place. The terms of the agreement with the chief constable were that he himself could elect to return to work. It was not just a decision for the SPA. I decided that having reached that conclusion, I wanted to advise the cabinet secretary of that. I met him—I cannot remember the exact date, but it was in early November. He explained the circumstances, and he told me that he thought that it was a bad decision. It was clear to me that he did not want the chief constable to return at that point. We had a discussion about the stability of the senior team, because that was a consideration that the SPA had. I had to attend the justice sub-committee, so there was a very short period of time. I did not extend the conversation. I had to go to the committee. When I came out of committee, I was asked to go back to see the cabinet secretary. At that point, there were three officials present. It was clear that the cabinet secretary was still very unhappy, but he changed to discuss the process rather than the decision itself. I reminded him of his comment earlier that it had been a bad decision. He told me not to bother with that. We then went on to discuss some of the process. There were two particular points raised. One was Perk's position on interference. We had made our own assessment of that position, but the cabinet secretary wanted it to be a more formal written response from Perk. We also discussed the wellbeing plan for those affected directly by the chief constable's return. He said that the process was deficient without these. I thought that deficient was an odd word, because it sounded as if something was missing rather than something being wrong. It is also the case that on interference that is only an issue for suspension. It is not an issue that is connected to the leave conditions. We could have got Perk's position on that. There was not any particular reason that we would have expected it to be anything different. I believe that Perk has already come back and said that he had no thoughts that there would be interference at that time. That took that out of the way. On wellbeing, we had already discussed it as a board on how we would approach that. We thought that it would be important that, in terms of progressing with it, we would need to involve both the senior team at Police Scotland, the individuals who had made complaints and, indeed, the chief constable himself, to come up with a robust plan as was requested. We could not really start those discussions until the cabinet secretary had been informed. It was always our intention that that would be put in place. In fact, if the chief constable had not taken leave at the end of August, early September, we would have had to put such a plan in place at that point in any event. For me, it was not something that should have taken a great deal of time to deal with the issues that the cabinet secretary had raised. Therefore, I left the meeting and put the chief constable's return on hold. At what point did you change your mind? I thought it best that, if the cabinet secretary was unhappy, it would be better for all parties to try to resolve that before the chief constable returned. Based on the meeting, that is when I changed my mind. Based on both meetings, you said that there were two meetings that day. Yes. You said that you made a decision on the basis that the cabinet secretary was unhappy. You said that, in the first meeting that day, he made clear—I think that he used the words—that it was a bad decision. Did you feel that you were being directed to change your decision? Not at that point, no. I thought that there was a point of disagreement, but when I went back for the second meeting, it was a discussion about process rather than about the decision itself. As I say, he deflected the point on whether he still thought that it was a bad decision. I would like to look a little bit about the 7 November board meeting. It was a meeting that was taken in private. Presumably, there are no minutes. Are there minutes for this meeting? There would be minutes, yes. Mr BTI certainly would have taken a note at the meeting, but I would have left the police authority before the thing might have been typed up, so I cannot answer the question. Who has those notes? I would have them in a notebook in my office, or what was my office. Would that have been passed on to anybody to create a minute? I would normally have created a minute from it. So you did create a minute from it? No, I do not think that I did from that, but there was a note. There were minutes of the meeting that took place up until that discussion, and then I took a separate note because the minute-taker was asked to leave because it was a confidential matter relating to the chief constable. Given that you were still active in SPA until the end of November, during the time between the 7 November and the end of November, you did not create a minute from your notes? Not that I recall. I was on leave for a part of that as well, but I would have to ask someone in SPA to confirm that. And it was not passed on to anyone else to create a minute? Again, I would have to ask someone in SPA to confirm that. So there is no record of that decision? There could be a record of the decision possibly. There could be, but we do not know where it is. No. Just to carry on on that, there was an agenda for this meeting. Was there? There was an agenda for the board meeting, yes. Did it include discussion about the chief constable? The discussion about the chief constable, that my recollection was that it was taken under any other business. Okay. So it was not on the agenda, so no one would actually know that it was coming up at that point. No, not other than the members. So the board members would know how? Well it would have been, the situation was that the chief constable's leave was reviewed broadly every four weeks, but there was a timeline where things had to be reviewed. So the members would have known because they would have discussed it four weeks prior to that approximately that they then had to come back and discuss it again. So they would have to remember that it was coming up to another discussion on that? Well no, because the members are in and out there. I keep using the wrong tense, I have not quite got used to not being there yet, but the members were in and out the office on a regular basis. So there was dialogue going on between members in relation to various subject matters and that had always been the case. So the members would have been aware that there was a requirement to discuss this. The chair would have been in frequent contact with the members in relation to some of those matters as well. Given that this is such an important item, was there a full attendance of board members? I think there was. I can't remember any absentees on the day. Thank you convener. I just apologise for batting in, but I just wanted us, current board members, to support what Mr Foley is saying, is that, subsequently, we do have a minute from the 7th of November that was produced based upon Mr Foley's notes and was circulated to board members, so it does exist. Our records show that it was brought up under any other business. We, as board members, were aware that this discussion was going to be taking place as we had had a previous discussion, which is also a minute as part of the closed board meeting on 31 October, in which case we were considering it, but we had requested further information, which was brought to us on the 7th of November. Convener, perhaps it might be interesting to see a copy of this minute. Is that something that you can provide to us, Dr Martin? I would just have to go back to the Scottish Police Authority to confirm that, because it is a restricted closed, because of the nature of the discussion. I'll go back and, if we can, we'll supply that. Okay, we'll certainly explore that with the SPA following this meeting. Colin Beattie. Coming back to this question of who attended the meeting, was it a full board meeting? In other words, were all the board members there? They would certainly all have been invited. My records and their still draft confirm that there were two apologies the rest of the board were there. Okay, so reference in the documentation here that there was a unanimous board decision, is that correct? Given that two members weren't present? It was unanimous of the members who were there, that would be a normal position to take. I would probably have had discussions with the other members who were absent to inform them of what had taken place at the board meeting, and if any objections had been raised, I would have taken those back to board. Outside of the board members, did anyone else have any knowledge that there was going to be a discussion on the chief constable's future? Would any other stakeholders have been consulted prior to? They would have been aware that, I believe, the chief constable's review period was the fourth of November, and we had not extended at that point. Although I don't recall if we actually told anybody, it would have been evident to those who were close to the situation that it must be a topic of discussion. There seems to be a lot of assumptions that people somehow keep a record of the possibility that this might come up. It doesn't seem particularly strong in who it's been handled. I think that it was reported in the press that we had still to decide on it. People do take note of those things. People were expected to look at the press reports and hope that they can pick it up from there. It really doesn't seem a very robust system that you've got here. On the eighth, you then decided that the chief constable would return to his duties. You advised. There was discussion on press releases and so on about it. There was a curious phrase involved in that, which said, Mr Gawma has now confirmed to the chair of the SPA, Andrew Flanagan, that he has had sufficient time to prepare himself for the conduct allegations made against him at this time. Was that the criteria on which he decided that he should return to duty? It was one of the conditions that was discussed at the time that he asked for temporary leave. That he considered himself to be significantly distracted by the intensity of the press activity, plus dealing with the issues that had given rise to the complaint in the first place. He had to go through a process of documenting his own response to those complaints. Can I just remind members and witnesses that we must not stray into detail of the complaints that Park is investigating? Members and witnesses should be careful about their questions and responses. Because it had been one of the things that he had cited as a reason for the leave, we had responded back in terms of the press release. What is consideration given by the board to the situation as far as the complaints were concerned? Yes, we had discussed the wellbeing arrangements and how that would do. It is worth noting that most of the complainants did not report to the chief constable. Only one of them was physically located in Tulley Island, where the chief constable is based. Everybody else was in different locations. It is not unusual in a situation in which there are complaints that you have to create a wellbeing plan to cater for both those who have made complaints and those who are being complained against. You took the decision to go public with this or to go to Mr Gomly with this. Did you consider it would have been wise to have discussed it with other stakeholders as well, the Scottish Government or other people who have an interest in this? Because it is a matter of great public concern. I think that the first step was to have a discussion with the chief constable to see if there were any other issues that would prevent his return. I had that conversation and we had his agreement that he was prepared to return. Then the next step was to talk to the cabinet secretary about it. At what point did you determine that you would advise senior police officers of the decision? I decided that we would do that as soon as we had spoken to the cabinet secretary. As late as the ninth, you are preparing press releases and so forth. At that point, the day before he was returning to duty, had you contacted any of the senior police officers? Clearly, there would have to be arrangements made and consideration as to how to protect complainants. It was not something that would be an overnight job. As soon as it was clear that the cabinet secretary was not happy with the decision, I stopped that process continuing. That dissatisfaction about the decision was only due to process. Was that in the eighth? I would have to consult my diary. I do not have it with me in terms of the exact date. It seems an incredibly compressed period in which this took place. I am not sure that it is. It is no more compressed than the time it took for him to go and leave in the first place. I have to say to Mr Flanagan that having read the various documents and so on that are here seems to be just a continuation of what the committee has discussed in the past. It seems to be extremely poor governance and poor process. I can see nothing here that shows that any sort of open and transparent process was followed. I think that you have to recognise that while this is the chief constable that we are talking about, he remains an employee. He is somebody who is an individual. He is entitled to the same personal protection. I am more concerned about the procedures of the board, how the board handled it, how you yourself handled it. It seems to have been just rushed through without stakeholders being properly informed and engaged. I find it quite extraordinary given the sensitivities. At the first step of that engagement process, which was planned, there became a problem and, therefore, the process was halted. Surely, you should have engaged stakeholders prior to the board meeting to take that decision, so that the board was fully informed of the position of the different parties involved in that. I am not just talking about only the Scottish Government. There are other parties involved as well, from the point of view of governance of the board. I think that we have rehearsed this. Do you want to talk to that briefly? No, I was going to say that that engagement plan was in place. As soon as it started, with the cabinet secretary being the first person to be engaged, we had an issue. Then, the board was informed that that was a problem. Actions were taken before stakeholders were advised. In other words, pressure leases were being agreed, letters were issued to the chief constable. It is fed to company. The due process was scheduled. You need to have a due process to go through that that has to continue. Ultimately, the position is that it is an SPA decision, and therefore it is advising those stakeholders. Thank you, convener. Good morning. Mr Flanagan, I would like to lead on from Colin Beattie's line of questioning and take you to the meeting with the cabinet secretary on 9 November. The first meeting was you and he only. That is correct, is it? Yes, that is correct. And neither of you took any notes while you were in that meeting? No, it was a very short meeting. It only lasted about 15 minutes. And as far as you are aware, neither of you noted anything down at all. The cabinet secretary has been very clear that the SPA did not have any plan to protect the wellbeing of officers and the staff who had raised complaints or played a role in the investigation of matters. Is he correct? Did the SPA really not have a plan around the wellbeing of officers? No, we had to discuss that in some detail, but as I said in my earlier comments, our view was that in order to get the robust plan that the cabinet secretary then requested, you would actually have to involve the participants in this, and we could only involve the participants once they knew of the circumstances. Your view is that you did have a plan. We had discussed the extent of how they might be resolved, but, as I said, until you want to have a formalised plan, the best way to do that is to engage with and have the input of those people who will be affected by that plan. That would include the senior team at Police Scotland. It would have included the complainants, it would have included the chief constable himself, and we could really only engage with him once he was back in place. It would also involve the HR director, who had a previous experience of similar situations. Dr Martin, is the cabinet secretary correct, then, that when Mr Flanagan was in that meeting, the SPA had failed to put an appropriate plan in place? I think that, as Mr Flanagan has said, there was a process for follow-up discussions that were going to be had that day. As he said, the start of the process was the discussion with the cabinet secretary. The process was then paused at that point. There were plans in place to have additional conversations and to have the detailed plans put in place. Were those plans written down anywhere? There was a list of what the process was for that day. That is not quite what I asked, Dr Martin. The welfare plans that the cabinet secretary said that the SPA failed to put in place sufficiently at that point. You say that there were some plans in place. They must have been written down or were they in Mr Flanagan's mind? No, I said that there was a process that was written down that would lead to the establishment of detailed plans. That was actually for conversations to be had with those stakeholders to seek their input in putting together a detailed plan. Can we have a copy of that? The process? What was written down? The plans? I have not called them plans. I have said that there was a process in place. What was written down then? Again, I will take that back to SPA. Mr Flanagan, the first meeting that you had, you described earlier that the cabinet secretary had told you that the board presumably had made a bad decision. What exactly did he say to you? Well, that was the key point. He then asked about how we had arrived at this decision, and I started to explain the issues that we had and how we had come to that point. He still felt that it was the wrong decision. As I said, it was a very short discussion because I had to leave for committee. But he did make a value judgment about the substance of your decision. I believe so, yes. Did the cabinet secretary tell you, either at that first meeting or indeed the second meeting, to change your mind? No, it was not that explicit. So why did you change your mind? Well, as I said in my earlier answer, I think that for the chief constable to return, it would be best that it was in the most conducive situation possible. If the cabinet secretary was unhappy for reasons that I did not understand, I thought it was best to try to resolve those issues before he returned. But the cabinet secretary must have been incredibly persuasive if you changed the decision, a unanimous decision, of the board. Well, he had asked for these two things. I thought that both of those things could be fulfilled and then relatively quickly, and therefore I thought that it wasn't going to lead to an extensive delay. And on the question of the second meeting, so this was a much more planned meeting. Not from my point of view. But you were aware that it was going to— No, I was approached when I came out of committee and asked to go back to the cabinet secretary's office. And in that office there were three officials? There were three officials, yes. Do you recall who they were? It was the director, the deputy director, and one official I didn't know. And at no stage did any of those— So there were five individuals in the meeting, including yourself. At no stage did anyone make any notes of what was transacted in that meeting? I don't recall seeing notes being taken. That said, I've had many meetings with the cabinet secretary, with officials present, and I don't remember any formal record being made of those meetings. Yeah, a formal record. Dick, can you just qualify that? Does that include informal records, just people noting stuff down as it's transacted? In the normal course, they may have had notebooks that they might have noted something, follow-up or something like that, but— But you didn't notice anyone doing that in this? I didn't notice anything specific. Would you expect minutes to be taken, Mr Flanagan? No, no. Mr Flanagan, I would like to follow on from Liam Kerr's question about how we got from the morning of the ninth, at which point a decision had been made, a unanimous decision of the board, to the end—I'm not sure exactly what time on the ninth—at which point that decision de facto had been reversed, the chief constable had been asked not to return. So Mr Kerr's gone through the two meetings. I'd like to ask, when you came out of the second meeting, at what point you decided to stop the return of the chief constable, and to what degree anybody else was involved in that decision, specifically other members who was aboard? It would have been that afternoon. I emailed the board to say that there had been an adverse reaction from the cabinet secretary, and I phoned the chief constable and said that we should postpone. So could you ask Dr Martin, as a member of the board, when you recollect hearing of the change and the nature of that message? I concur with what Mr Flanagan has said, that the board, in my recollection, received an email to say that we were pausing this. But that was not something that involved you in that decision, that was a communication to you from Mr Flanagan of the decision that he had taken. That was a communication from Mr Flanagan, yes. I can't remember the details of that, so I'm going from memory here, but I think I said that I recommend that we pause the situation, and I don't recall anyone coming back with a different view. Did you give them a time to return to you with a view, or you recommended that, but then acted on that? Did they have the opportunity to come back to you and say that they have had to have done that instantaneously? I believe that some of them did, and I don't know that everyone did, but a number of them came back. You said in answer to Mr Kerr earlier on that you were pausing the decision and felt that the difficulties or concerns that the cabinet secretary had expressed could be readily resolved. You've talked, for example, about getting a view from Perk. If that had been the case, if you'd been right, then when would have imagined what would have happened is that there would have been a short pause and then you would have continued with the board's plan of action, which was for the chief constable to return. So why has that not happened? For me, of course, it was the last couple of weeks before I stood down. I think that we had further discussions along with Dr Margin and officials the following day. From my point of view, I think that my feeling was, and I'd have to say that it was a feeling and impression, that it would have been perhaps better for the new chair to take the issue forward rather than me, that perhaps a fresh pair of eyes might have been more convincing to the cabinet secretary than my own view. If we look at what happened on that day, you went into the day with a unanimous board decision—this is the 9th of November—and you met the cabinet secretary. The cabinet secretary indicated to you that, in his view, the board had taken a bad decision. You met later with the cabinet secretary in which he expressed a number of concerns about the process and the way in which the decision had been reached. You then, quickly after that, having informed board members by email that you intended to do this, stopped the process, which was under way of the return of the chief constable. The convener asked you earlier on, Mr Flanagan, whether you felt that the cabinet secretary was directing you to stop the process. Will you accept that, if you look at that objectively, it's quite difficult not to conclude that you felt that the cabinet secretary was telling you to stop the process? I think that direction is a more formal term and I couldn't say that I had been directed to, but the position that I was in, I felt that I wasn't in a position to move forward with that decision. You felt that you had no choice but to pause the decision? Let me follow on from that briefly, Mr Flanagan. What would have happened if you had left the building that day and had not changed your mind? Firstly, I would still have had to brief my colleagues on the board and again their views on what we should do and whether or not we should press ahead. I would also want to consult with the chief constable and see what his view was. Again, we need the parties to be comfortable and happy with the circumstances that are arising. With regard to how the cabinet secretary felt about it, if you hadn't changed your mind… I think that if we hadn't changed our mind, as I brought in, I would stress that it's we, not me. If we had agreed that it was important, again from recollection, some members raised the point as to whether or not we should press ahead. We feel independent enough as individuals that if that was our considered position, we would have continued with the process. Alex Neil I think that in the earlier remarks, Dr Marchant referred to a board meeting on 31 October that first considered the reinstatement of the chief constable. Is that correct? No, not reinstatement. That was discussing the continuation of a leave of absence. For the board meeting and the agenda for 7 November, we have heard that this vital item was taken under AOCB, but when the board members informed that there would be tabled at that meeting a proposal to reinstate the chief constable, will they give an advance notice that that specific proposal was on the agenda? I can't recollect whether that is or is not the case. I, as the deputy chair, had had discussions with the chair and was aware of it. I don't have records to show whether or not the board members were or were not aware of what the discussion was going to be on 7 November. You are the deputy chair of this organisation and you are telling me that the most vital decision that you have had to make in months, if not years, you cannot recall if board members were informed in advance of the meeting that there would be a proposal table to reinstate the chief constable. Are you being serious? Are you seriously expecting me to believe that you don't know that? What I'm actually saying is that I don't know if there was a formal communication to the other board members on the 31 October meeting, the discussion posed around. Sorry, I'm just trying to be very careful with the words I'm using. Apologies. The discussion on the 31 October was regarding the continuing leave of absence, and we also always discussed the welfare issues of complainers and complainers. At that discussion, there was the discussion around, as Mr Flanagan had referred to, the NPCC, the redeployment opportunity. There was a discussion then regarding what information we required in order to make a more informed decision regarding that and continuation of the leave of absence. Yes, there was an expectation that this would then be brought back to a future meeting, and that meeting would have been 7 November. To a future meeting, but were board members not told that it was to that meeting eight days later? Yes, they were advised that it was at that meeting on 7 November. It was to be tabled? The responses to the questions that had been posed would come back to the meeting on 7 November. So can I ask, was the chief constable given any advance notice that this was to be discussed at the 7 November meeting? He was not given precise details of when the board would come to a conclusion, but at the earlier meeting, I had been asked to seek the chief constable's position and whether or not he was open to returning to work. Was the chief constable told that this proposal would be or might be tabled at the 7 November meeting? Not the details of the 7 December meeting, but we wanted his views on whether or not he was willing to return to work, so he would have been aware that we were discussing and considering that issue. So the chief constable was aware, the acting chief constable wasn't aware, PUT wasn't aware and the cabinet secretary wasn't aware. We're not absolutely sure that even the board members were aware that they were going to discuss this on the 7 November meeting. I believe that all the billboard members were aware that they were going to discuss this on the 7 November meeting. All the board members knew that we had to arrive at a decision either to extend the leave or return to the chief constable to work, so there was no doubt or dubiety in the minds of the board members about what the discussion was going to be. So how many board members were there at that time? I know that there's been recent recruitment to the board, but how many people were entitled to turn up as board members on the 7 November meeting? I'll live in, I think. How many turned up? Well, from the minutes, there's two apologies, so there's nine. And what's the quorum? It's a majority of those present. That can't be the quorum, a majority of those present. I mean, if two folk turn up... Sorry, sorry. A quorum is six, I think. So it was quarry? Yes. So after the meeting, obviously the chief constable was informed at what stage was the chief constable informed of the decision of the board to invite him back to start work again on the Friday? I think on the Wednesday. So he was told on the Wednesday. Yes. Was that before or after you had your conversation with the acting chief constable, Ian Livingston? No, I didn't have a conversation with the DCC designate until the Thursday. Right. Well, Mr Livingston gave evidence to the Justice Committee on Tuesday, and what he says is, I know conversations with the cabinet secretary. I had some communication with the then chair of the SBA on the evening of Tuesday, 7 November, the day of the board meeting. I asked Andrew Flanagan for an update on the police authority's meeting. I knew there had been a meeting, and I felt it was important to get that update, because I had a responsibility to the men and women, officers and staff within Police Scotland, should there be a change in filled, gormly circumstances. I did not get a reply to that, and on the Wednesday, I was told that this is by you on the Wednesday, not the Thursday, that, quote, deliberations were on-going. Is that correct? Well, as I said, for me, the first step was to advise the cabinet secretary. I would then have spoken to the DCC designate. Would it not therefore have been more appropriate and more accurate to have said to the acting chief constable when he asked you on the Wednesday morning, I need to speak to the cabinet secretary first, and then I will contact you as the acting chief constable? Perhaps, I... I mean, to say deliberations were on-going at that stage. Well, I hadn't spoken to the chief constable at that point to confirm that he would return. So, the sequence on the Wednesday, you said you hadn't spoken to Ian Livingston until the Thursday. Ian Livingston says that you spoke to him on the Wednesday, so do you now accept that it was the Wednesday that you spoke to Ian Livingston? I accept that. So, what was the sequence? Did you speak to Phil Gormley before you spoke to Ian Livingston, or did you speak to Ian Livingston before you spoke to Phil Gormley? I bet you don't remember. Well, I don't remember in which order. Well, there's a surprise. You don't remember. The amnesia that's around the Scottish Police Authority is beyond belief. We had that last time about nine months ago. So, basically, the acting chief constable is saying that Mr Flanagan is, in words, a one-syllable. You lied to him. No, I don't think I did. Well, that's what he's implying. I didn't have a firm conclusion at that point. But deliberations weren't on-going at the board. The board had taken a decision. Surely the honest thing to do would have been to say to the acting chief constable, who's responsible, as he quite rightly says, for the welfare of all the ones who work in Police Scotland at that time, to tell him that I can't tell you at the moment what the decision is until I've spoken to the chief constable, Mr Gormley, and to the cabinet secretary, but I'll ring you back in the afternoon once I've done that. Surely that would have been the professional way to handle that. I don't recall the details of the call. I thought it best to advise the cabinet secretary first, and in the event that turned out to be a wise decision. So when did you ask for a meeting with the cabinet secretary? I think it was asked for on the Wednesday, but it actually was set for the Thursday morning, because I was going to be through in Edinburgh for the committee meeting. You didn't think it was important enough to inform the cabinet secretary in the Tuesday evening or sometime in the Wednesday of what the board's decision had been? The last time I had met with the cabinet secretary, we had talked about the chief constable's situation. There was no indication that this was going to be a significant issue. Well, obviously I wasn't party to that, I can't answer that, but by the time you spoke to the cabinet secretary is it not the case that the chief constable, Mr Gormley, had already left his home in Norwich and was driving to Scotland? I don't know the chief constable's travel arrangements, sorry. Well, you do know that he had to turn back. He was expected. In the middle of his journey. I saw that reported in the press, but I don't know the details of that. I know that he was expected. So when you spoke to Mr Gormley, he wasn't in his car? I don't know whether he was in his car or not. But Mr Gormley's lawyers, I think, have confirmed that he had to turn back, because he was already on his way. So he was already on his way to Scotland to take up his duties the next day, before you told the cabinet secretary and you hadn't even by then told the acting chief constable, let alone Perk. Is it not the case that in his previous expressions of concern about governance in the Scottish Police Authority that the chief inspector of the constabulary had already advised the Scottish Police Authority that it had to improve its governance around these matters? There were some recommendations from HMICS, and I believe that they were implemented. Well, will those recommendations not include that in circumstances like this, there has to be before any final decision is taken, prepper it before, not after the decision is taken, appropriate consideration has to be given in discussions with the park in relation to the welfare of those who work in Police Scotland and other appropriate stakeholders consulted? I don't recall any recommendations about that nature. So you're saying that the inspector had never made such recommendations? The last time, I believe that there were recommendations from the HMICS was in the transparency review in June and the forensics review around the same time. There was no comment from HMICS that I recall on particular issues around the return of the chief constable. Is it not the case that a previous private board meeting the inspector had made those comments and had followed them up by email? I don't remember that. You mentioned this morning that you made reference to when the chief constable came back, you made a fleeting reference to work for the national police chief council, which I believe is a UK body. So can you clarify, which seems again to contradict what's in the press release that SBA were going to release on the chief constable's reinstatement, where it says that he would be returning to operational duties, implication being operational duties at Police Scotland? Can you clarify what was he returning to? Was he going to be returning full-time to operational duties in Police Scotland, and what's the reference to the national police chief council? What's that all about? We were asked in early October, mid-October, roundabout that time whether we would agree to the chief constable going to do work on a specific project for the NPCC. When the chief executive was asked to explore what that was about and what that meant, and it turned out to be a full-time involvement over a nine-month period, we did not think that that was appropriate for the chief constable. So, to be clear, if he was returning, he was going to be returning to full operational duties full-time with Police Scotland? Yes, because we didn't believe that it was appropriate for the chief constable to be paid for his normal role, but then conducting work on behalf of the NPCC. But it indicated to us that that meant that he felt that he was fit and able to do a full-time job. Can I just finally, because I think that I'm running out of time from the convener, ask a final question to both Dr Martin and Mr Hume. You're both non-executive directors of the SPA board. Over the last nine months we've heard what a pantomime it is and the poor governance. We've heard the auditor's report and we've had crisis after crisis. We've heard this morning how you all come unprepared to this meeting. You can't answer basic questions. You haven't brought your notes. You haven't brought your minutes. You don't seem to be well prepared at all. Is it not time for you to, as well as some of the other non-executive directors, open part of this pantomime to fall in their sort? We listen to input from yourselves and obviously from HMICS, and as a personal individual I take that input very seriously. You can't be proud of this record. The non-executives have utterly failed in their duty. You can't be proud of that record, are you? My view is that there are always areas of improvement on both the governance and the processes. We continue to strive to improve. We accept the findings of HMICS and Audit Scotland's reports. David Hume. I agree with the comments that Nicola Marciant has made. There are improvements. If you read the annual audit report in the section 22 report, you will see in their acknowledgement that improvements are being made. I know from those areas that I'm involved in that there are obvious improvements. With the movement into the new chair taking post and the new chief officer taking post, I think that those improvements will continue. I don't accept in whole what you're saying. Some things have been said this morning that I don't recognise in terms of how the board went about its business. We took this matter extremely seriously. We knew, because of the four-week cycle of the renewal of this leave of absence, that the board had to take a decision. We knew on 31 October that we would be coming back to a convening meeting on 7 November. That meeting was a duly called and held. We had the principal adviser to the board in the form of the chief executive there. There were no proposals tabled at that meeting. It was the same issue that we had talked about in previous four-week meetings, which was, does the chief constable's leave of absence continue? As always, we very thoroughly went through a number of basic considerations that allowed us to take that view. We always talked about the welfare arrangements for the other members of staff and the chief constable. We had directed the chief executive to consult with the perk, because in terms of the options that we were facing, we could continue the chief constable's leave of absence, we could move to suspension or he could return to work. In making those judgments, we were mindful of the regulations that set out the criteria for suspension. That is why we directed the chief executive to stay in contact with perk, so that we would have a view about any potential interference with the investigation, because that is one of the two criteria for suspension. The other criterion is in relation to the public interest, but it would be a public interest driver for suspension. At the meeting on 7 November, there was no proposal tabled. There was a recognition that we had by identifying that timetable to make a decision about the position of the chief constable. Again, we reflected on the welfare arrangements. Again, we reflected on the view from the chief executive officer about the role of perk at that time. I am sorry to interrupt you, but did you say that there was no proposal tabled to reinstate the chief constable? Have I taken you correctly? As I understand what that phrase means, there was no proposal. We did not go into that meeting. I do not think that anybody had reached that decision point before the meeting. How did that proposal come about? Sorry to repeat myself, but the context for the meeting was the four-week review, and we knew that we had to come to a view. The options in front of us were clear. The options were under the terms of the regulations. You have gone through all of that. Presumably, you had legal advice at this board meeting, had you? We did not have legal advice, but we had previously on those issues. We are considering those options clearly. Anyway, leaving aside the absence of legal advice, who proposed the reinstatement of the chief constable? It was a consensus of the board having gone through the process— Somebody had to say, surely, that I proposed. If you are taking a decision at any board meeting, and there have been a lot of boards, somebody has to propose the reinstatement. There are three options, and somebody surely has to say that at some point I propose that we go for that option and reinstatement to the chief constable. There was a discussion about the feedback through John Foley from Perk. There was a discussion about the public interest matter. We were aware of the discussion that you have just had about the MPCC. Certainly, as a board member, I felt in that meeting that I had got to the point of thinking that the conditions for suspension were not met. The chief constable had declared that the reason that he wanted leave had ended. I felt that, on the basis that we talked about with the MPCC, it was in the public interest. I felt that I could not justify a continuation of special leave when he ought to be back at work. I need to wind up, but, just for the record, in writing we have it from Perk, they were not consulted about the reinstatement proposal. I can only tell you what I expected at that meeting. You are absolutely correct, Mr Neil. I certainly did not consult with the Perk in relation to that. My recollection of what happened at the meeting where that decision was taken is that I was going to leave two days later. I took an action from the meeting to write the letter to the chief constable, which I did. I know that you have got a copy of that, but my recollection of actions was that the chair was to communicate with the Perk and the cabinet secretary and the chief constable. However, I was to maintain regular contact with the Perk, which I always did. I am sure that the sequence was important. When there is any investigation going on anywhere of a disciplinary nature, and you are talking about reinstatement, the first thing that you would do, I would have thought, is to check with the view of the person investigating the complaints about whether it was appropriate for the person to be reinstated at that stage. Perk have said that no such consultation took place. That is correct. That is damning, as well as correct. Several of the meetings that you referred to, the board meeting of the 31st, we have just checked, there is a note saying that it was a closed meeting. I think that we are looking for the minute of 7 November. It was agreed at the 20th of November, but it is not public. I know that Mr Flanagan has since stepped down, but a theme throughout your chairmanship has been this issue about secrecy. In retrospect, do you feel that there have been so many comments today about, oh, I think that I recollect that, or I am not sure about that, was there a minute, no, that there wasn't? Do you regret that the whole process under your chairmanship hasn't been more transparent? I think that we do document things properly. I think that Dr Marchion has confirmed that there are minutes of those meetings. Well, there is certainly not on the website, I don't think. I mean, I stand to be corrected, but they don't seem to be publicly available. The practice is supposed to be that once we have had closed meetings at the next public meeting, we report the business that was conducted and any decisions that were made, so that was after I had left, I believe. Okay. Dr Marchion and David Hulme, there were concerns raised about lack of transparency and privacy by a previous board member. Were those concerns that you share, shared at the time and shared now? David Hulme? Yes. I, going back almost a year, indicated that I had concerns. I indicated that we should embark on a review of those arrangements from the position of comparing the standards of governance in the SPA with the best available international standards of governance. So you made those concerns clear to Mr Flanagan? Yes. Privately, because there's no minute of that, is there? I think that there are several minutes. I might be wrong, but I think that even here, I mentioned it when I was here a year ago, and that was, just to say again, if I may, that there's an international standard for good governance that the international chartered accountant federation, I think, developed with SIPFA. That's the one that I wanted to use, then chair agreed that I would. And I have actually developed from that standard a framework for the measurement of the governance standard in the SPA. Well, I think that we're all hopeful that this issue will improve going forward. Daniel Johnson? Well, firstly, can I thank the convener for bringing me in at this point as a member that's not a member of this committee. I do appreciate that. I'd just really like to try to establish the facts of the meetings that have occurred and what was discussed. In particular, Mr Flanagan, you said that at the previous meeting that you'd had with the cabinet secretary prior to the seventh, that you'd discussed the situation of the chief constable. Indeed, I was wondering how many meetings you'd had with the cabinet secretary from the point at which the chief constable went on special leave, and indeed the meeting of the seventh. And how many times would you say that that situation had been discussed? The cabinet secretary and I typically would meet every four to six weeks. So the chief went on leave beginning of September. I think I had a meeting in September and I had a meeting in October. So you met on a number of occasions and you discussed the situation of the chief constable. Can I ask what sorts of questions was the cabinet secretary asking around the process? What sort of interest was he taking? It's an important issue. The absence of the chief constable for an extended period of time is challenging for everyone. There are certain powers vested in the chief constable that are not transferable. We'd already had a situation where the previous chief constable was absent for about four months and we had a designate in place at that point. So everyone is concerned that there shouldn't be a prolonged period of uncertainty. The discussion on October, if I recall correctly, was around the length of time that the perk investigation was taking, whether or not the police regulations, which combined police standards with employment standards and management standards, were fit for purpose. It was a discussion around those things. We didn't discuss the specifics of the complaints themselves. You did discuss the process indeed. Would you say that the cabinet secretary was aware that you were reviewing the matter on a four-weekly basis? Was he aware that you had the list of procedural steps that Dr Marchant set out? Was he familiar with those things? I think that the procedural steps came later. At the time of the meeting, it was probably about the second week of October, so we were not in a period in which we were running up to the review of the temporary leave, so there was nothing specific in that. Later on, we had discussions with Dr Marchant and I had discussions with officials more about the generalities of the situation and, in our view, some concerns about the long-term structure of the senior command, the lack of succession planning, possible outcomes for the complaint process itself and what would happen in those circumstances. We had those discussions with the director for safety communities at the end of October or something like that. So, the cabinet secretary, in any of those meetings, or indeed any of his officials, raised the matter of these two requests as a condition in their view of a satisfactory return for the chief constable? No, he didn't raise them in any of those situations. Can I just then focus on the meeting? There were two meetings on the 9th of November. I believe that's new information. I don't know if that's new or not, but, yes, there were two. This is the meeting with the cabinet secretary. There were two meetings with the cabinet secretary. One that you requested and then one that he subsequently requested. The first of those meetings, you said that the cabinet secretary described your decision as a bad decision. What did he say that the consequences were of that bad decision and did he say that there was anything that he felt should happen as a result of his indicating that it was a bad decision? I think that he indicated that he thought that it was a risk to the stability of the senior team and that's why I think I referred to earlier a discussion that I had with him about stability of the senior team and I had a different view from that. Was there anyone else present at that first meeting? No. There was just you and the cabinet secretary. At the second meeting you said that there were three officials there. That must have felt like quite an official meeting at that point with that number of civil servants present as well as the cabinet secretary. Yes. I suspect that it felt rather one-sided. You said that you felt that you couldn't have made any other course of action other than the recommended one, otherwise that you would have displeased the cabinet secretary and that was not something that was acceptable. Is that sort of the fair characterisation of what happened? No, I don't think it is. I don't think my role is to please or otherwise the cabinet secretary. I guess what I'm trying to ask is do you felt you had any other course of action available to you other than what had been recommended and requested? Because the issues were characterised in terms of process, I had to make a judgment as to whether or not those process issues could be dealt with and hopefully, as I said earlier, create a more conducive atmosphere to the return of the chief constable. As I assessed at the time, I thought that those matters could be resolved relatively quickly. Therefore, I decided that the best course of action was to pause and see if we could resolve those issues. The reason I asked is that, yesterday, the cabinet secretary said that if you had not acquiesced to his request that he would have felt compelled to invoke his powers under statute to direct. It just strikes me that under those situations, that situation, you really would have felt that there was no other course of action. If he invoked his powers, he is the cabinet secretary and, therefore, he can override in that situation. I think that that's a very big step, but you have to also recall that it's not from my point of view—I had already resigned. I was in the last two or three weeks of my departure. If I thought that that was the right course of action, I would have felt obliged to do it. Therefore, if it was a case that it had to be a political decision, not for the return of the chief constable, that would have been clear, and everybody should understand that. What I don't think is correct is that somehow it's pushed back to the SPA in a situation in which I don't think that now it's clear what the basis of the chief constable's current absence is. The risk of an interpretation or perspective or presumption is that there has been some sort of political decision, but it's not overt. It's not how it should happen. If the chief constable wishes to make that direction, he should make it. If you could wind up, please. I would be interested in your opinion of what you think the difference between a request and a direction is, whether that's the direction in the formal centre or otherwise. As I said, he didn't request that he said that he thought that there were steps that we should be taking before it should take place. My judgment at that point was that we could do those things, and therefore that was better than a situation that was more confrontational at that stage. The request is his words rather than mine. Request was the word that he used in the chamber when he made his statement, the cabinet secretary. I want to ask again about the wellbeing plan in the process for putting that in place. You said, Dr Merchant, that the process is written down and it would lead to a plan being put in place to deliver the wellbeing for all the staff involved. Was that discussed at the board meeting on 7 November? Was there due consideration given to say whether there was sufficient time to put that in place before the chief constable's return? The process that I am talking about is a series of conversations that would enable that plan to be put in place. On 7 November, welfare and the wellbeing of individuals were discussed and it was agreed that that would be formed part of the enabling that would happen prior to the chief constable's starting work. Was there an agreement that there was sufficient time to deliver that, given that you had taken a decision at the board meeting to reinstate chief constable, who was then going to return to work only three days later? The view was that once those conversations had been had, then those were the individuals who could best inform us to whether or not around the time consideration. As Mr Flanagan has said, those conversations did not take place. The deputy chief constable told the Justice Committee that by Wednesday the 8th he still did not know about any welfare plans being put in place. At that point, the chief constable was returning to duty two days later. Are you honestly saying that there was sufficient time to ensure the welfare of all the staff that are involved in this, to ensure that that happened in time before the chief constable returned to duty? What I am saying is that those conversations were going to be had if there was a concern raised, then I am sure that I would have gone back to the chair and asked for the board to reconsider their position, but I had not had those conversations. So, the chief constable could have returned to duty on Friday 10th, and the welfare plan may still not have been delivered or implemented across the service? That is not what I said, what I actually said was... Do you think that is the case? No, I do not think that is the case. So, would all have been done and dusted in two days? No, I actually said that I would have had the conversations, which would have enabled me to make an informed decision on the welfare plan, and if I had concern of it, I would have raised that with the chair and the rest of the board. Thank you. I would like to turn now to the session 22 report, the audit. In a way, I start with a general question. The session 22 report tells us that, in 2016-17, the Scottish Police Authority overspent its budget by just under £17 million, and that the budget that the authority approved for 2017-18, the current financial year, forecast a deficit of over £47 million, and the Auditor General tells us that indications are that that will indeed be the out-turn position. It is hardly a stellar financial performance, and I wanted to ask the panel why they felt that it was acceptable to approve a budget that was such a large overspend and what options were considered that might have allowed a balanced budget to be achieved. The first thing is that, since I started in September 2015, there had been a posity of financial information to allow us to determine what the financial situation was in Police Scotland, and we had spent most of that first year trying to determine that. I think that we got to a position where we had much greater degree of clarity in terms of what the actual current spending was, what the cost pressures were. We had also been able to identify some of the options that were open to us. The issues that arise in terms of reducing the costs and bringing them back to balance were fundamental and long-term in terms of their delivery. The three options fall into one, changing and reducing the number of police officers compared to the mandated criteria of 17234. Police officers' payroll costs represent some 65 per cent of the budget, maybe even up to 70 per cent. I am sure that the chief executive can be more precise. The second was introducing much more effective procurement and purchasing of non-pay items. Again, because of long-term contracts that were in place, that was going to take some time to effect. The third area was a complete reform of the back office, which had not been significantly moved on since the creation of Police Scotland in 2013, to the extent that we still had no single payroll system, we had very ineffective HR processes, we had no agreed consistent terms and conditions across the workforce. All of those issues were going to take some time to resolve. We thought that that was going to take three years in total to resolve. We took that position to Government and we explained the situation. The more immediate, quicker position would have been to start to reduce the police officer numbers, because just with normal turnover, retirement, etc., that would have been the most the quickest effect. However, the Government was not willing to contemplate that. I would like to look at the process around the settlement that was made to Mr Folly. I hope that we can get some direct answers on that. On 17 August, the Deputy Director for Police Division contacted the SPA, Deputy Chair of the Marchent, in connection with the pile-on issue. You stated that you would receive clear HR advice on that point. Was that in writing? The HR advice that I received was as part of the preparation for the consultation to discussions and was in verbal. I confirmed that the pile-on was part of our standard operating procedure and that was confirmed back to me and the standard operating procedure that I was shown in writing. So you gave HR details of what was proposed and you didn't? No, that was a consultation discussion. Which means? Sorry, to go back a step, the process was on 7 June, there was a closed board meeting where there was a proposed business change which would have meant the redundancy of the role of the CEO's stroke accountable officer. That was a board discussion. The board supported that proposed business change which led to my being asked to formally write the business case for change which would enable the start of a consultation as per due process for impacted individuals. That was done and therefore consultation was started with those that were impacted by the proposed business change. It should be borne in mind that we actually work under a no compulsory redundancy, which means that when there are individuals who are impacted because their roles no longer exist in the organisation and therefore are redundant, then any individual would have an option to volunteer to take redundancy terms and conditions. They have the right to stay in our organisation and we would provide them meaningful work, in which case they sit within what is called our supernumerary pool because we have a no compulsory redundancy policy. That person who sits, any person who sits within the supernumerary pool, we provide them meaningful work until either there is a suitable alternative role in the organisation and in this case there would be very unlikely that there was a suitable alternative role at the level of the CEO. The third element is the individual is given the option to be considered for new roles that appear in the organisation as a consequence of the change. On that suitable alternative role point, there was a suitable alternative role. There was one paying somewhere between £107,000 and £120,000 to do fundamentally the same job that he had been doing, wasn't there? The interim chief officer role was submitted to Scottish Government as per process for banding and salary. It was banded at a band lower than the CEO role that Mr Foley sat within. Therefore, it was a redundancy because it was a band lower than the role that he had. I do not question the redundancy, although I may do it at a later stage. I question your assertion that there was no suitable alternative. There was a suitable alternative. Sorry to refact then. That was an option that Mr Foley was asked. As part of consultation, any new role that is created following a business change is looked at as an opportunity for the individual. Just continuing with this, the clear HR advice—I am looking at Paul Johnson's letter of 18 January here, which lays this out very clearly. The clear HR advice that he received was verbal. The position that he told you was that, essentially, there is no discretion about the size of the offer. Sorry to be good. There is an agreed package of VR and VER. There are options then to consider how an individual exits the organisation. The package of the VR and VER is an approved package that is applied to all individuals that elect to take redundancy. Given the importance of the particular process and the decision that has been taken, wouldn't you have asked HR for something in writing? The VR and VER policy is something that has actually goes through the board approval process, so because we were working within the agreed policies and the SOPs, the advice that I sought from HR was to provide an assurance that we were working within our policies and processes. As a result of that advice, you proceeded to make an offer. As a result of that advice, I progressed with HR through consultation. The outcome of the consultation was the offer letter. At what point did the board become aware of what the settlement was? The 11th of August. That was when there was an authorisation requested of the board by Mr Flanagan, who emailed the board with the outcome of the consultation to progress with the settlement offer. The deputy director of police division emailed yourself on 23 August, highlighting the fact that the issue could be open to scrutiny. I am quoting here. It may be worth thinking about what the answer would be to that specific question that you were queried on. Did you take that into account? Yes, I did. At the beginning of the business case for change, there were three business imperatives and business objectives. One of the things was to change as quickly as possible the reporting relationship between forensic services and the board responding to the recommendation from a June 2017 HMICS thematic review of forensic services and a previous 2016 HMICS public advice note. The second discussion was to secure the business continuity despite the consequential redundancy of the CEO role by recruiting an interim chief officer before the CEO left the organisation and that was because both the chief officer and the CEO role take on the accountability of the accountable officer. The third was to ensure the CEO as accountable officer remained in post long enough to complete and present to the board the annual report and accounts and then leave the organisation immediately thereafter to enable the accountable officer responsibilities to transfer to a newly appointed interim chief officer. I will come back to the business imperatives in a second. 11 August was the board meeting at which the decision was taken to approve the package. 17 August was when you asked HR. Won't you have asked HR first before going to the board? No, I had had conversations during the consultation process as I was accompanied by HR, which commenced on the 27 July, the consultation process. 17 August was not a definitive date, as far as that is concerned. Given the criticism from Audit Scotland and from Paul Johnson, do you think in retrospect that you were correct to proceed in the manner that you did? I think that, as I go back to the business imperatives, it is actually looking at the value for money and also how best to achieve those business imperatives. All three business imperatives were achieved with the course of action that was taken. Let's look at these three business imperatives. The first was to change as quickly as possible the reporting relationship between forensic services on the board. Was that reliant on the chief executive being in place until that could happen? That was reliant. The business case for change was proposing that changing in relationship, that change in relationship resulted in the role of the CEO becoming redundant and therefore consultation needed to be progressed before you could change that. The impact of that change in reporting relationship was a redundancy. When did that change take place? Can the person who is having trouble with the mobile please step outside the committee? Excuse me, Colin. Can I ask you to resume, Dr Martin? Yes. To confirm, on 1 September, the reporting relationship of forensic services was changed. At that time, the role of the CEO was redundant. 1 September, when that first business imperative took place, Mr Foley was still in position until 30 November. The second business issue was business continuity. Rather than a luxury, in most cases, to be able to hold a double position. How long did the interim chief officer understudy the previous CEO? The interim chief officer took up his position on 13 November. 13 November? 13 November. So, in fact, it was 17 days. Was that planned in terms of the period? Was it adequate? It was an agreement. The start date was an agreement between the board and the interim chief officer. We had discussions about whether that was a sufficient handover time. There were other executives in the SPA team and the board members. It was being planned on the basis that the accounts would go to the board for approval on 28 November. If I take the third business imperative, that did not happen. The accounts, according to what I see here, were not signed off until after the CEO departed. No. The accounts were approved on 28 November board meeting. Which is two days before he left? Correct. So that just came in. What is this? Sorry, I'll just point out. Actually, just to be clear, we did not, Mr Foley was not actually told that his departure date was 30 November until the chair of the audit committee had notified myself and the HR business partner that the audit committee was able to recommend the accounts for approval if the accounts had not been presented to the board on 28 November. Mr Foley would not have left on 30 November. That was the agreement that we had. He would stay in role until the accounts had been approved and signed off by the board. Interesting. I was going to ask about the accelerated consultation process. What is the accelerated consultation process? How is it documented and how is it monitored? The consultation process, consultation meetings are minited and documented by the HR business partner. What the accelerated means is that with the support of Mr Foley, our processes would normally have meant that Mr Foley had one-week's notice of coming to a consultation meeting. Mr Foley wrote to me to say that he requested that that be accelerated and that he met him earlier. We then expedited that as fast as possible so that consultation took approximately four weeks. In normal processes within Police Scotland, according to the guidance that they have, consultation would take 12 and a half to 14 and a half weeks. Is the accelerated process a documented process? The accelerated process is the documented consultation minutes. Dr Margin, Colin Beattie has explored the process around that, but Audit Scotland quite clearly said that Mr Foley received three months' salary unnecessarily at the expense of taxpayers. Do you agree with that? I agree that that is a valid point. However, what I am saying is that it is based— Do you agree that it is correct? I agree that it is a valid point, but it is based on the assumption that the consultation would have actually concluded and Mr Foley would have—we would have entered into the contract or VER. I do not think that it is based on any process. It is based on the fact that the auditors think that that was an expense to the taxpayer that was unnecessary—£28,000. It was based upon their way that they explained it moving forward. It was based upon the fact that we announced the consultation and the announcement and therefore leading to the announcement of and implementation of the business case of change was the 24th of August. It is based upon that date being a fixed date. As you start consultation, that is not a fixed date. It was a date, and therefore, if that date had been—in my view—cended and consultation had gone beyond— Dr Martin, it is this committee's job to follow the public pound. Audit Scotland is telling us that 28,000 of those public pounds were spent unnecessarily on Mr Foley's payments. There can be all those processes that have been followed, but in the view of the auditors, that payment was unnecessary. Mr Foley, do you agree with that? Well, in actual fact, convener, as the process was developing, I deliberately did not engage with the board members in relation to this as a board because I felt that that would be inappropriate. The process that Dr Martin has outlined is what was followed. I was reacting to an offer. We have heard a lot about the process. You were paid 28,000 pounds. The Audit Scotland has said that it was unnecessary and that it has cost the taxpayer. Do you agree that it was unnecessary? I agree that I could have perhaps worked in this period, but I agree with that. In which case, the expense was still being incurred. Have you paid the money back? No, I have not paid the money back. Do you intend to pay the money back? No, I do not, because I had a contractual arrangement with my employer under UK employment law. It is all above board. I have done nothing wrong. Do you agree that this has been an expense to the taxpayer that could have been avoided? Well, I do not know how it could have been avoided because I had a notice period and if I had worked a notice period, I would have been paid for it. I would like to turn to some of the payments that were made to the deputy chief constable. We heard evidence from this at our meeting on 21 December. There were relocation payments made to the deputy chief constable. I believe, Mr Follow, that you were in charge of those payments being made. Is that correct? Yes, that is correct, convener. Okay, and did you feel that the magnitude of those relocation payments were appropriate? Well, they were contractual entitlements, convener, and if I could perhaps explain some of the context in relation to that, and I'll be as brief as possible, the deputy chief constable and senior officers were all giving contracts upon the creation of Police Scotland. Within those contracts, there was a clause that said that they were entitled to relocation payments. The relocation payments at that point pointed to what is commonly referred to as the Strathclyde policy. A legacy policy was adopted, and that was put in place. It is also important to note that, in police regulations, there is no upper value limit, nor is there a time limit in relation to those, but notwithstanding... Well, I understand that the Strathclyde Police Authority's standard operating procedures did put a time limit on it, and that was 18 months. I'm going to come on to that, but what I was referring to was the regulations. The policy in Strathclyde was not regulations. Police regulations and policy are different. So, why were you adhering to the Strathclyde operating procedures if there were other regulations in place? Well, if I could come on to that, convener, I'm trying to explain it quickly. So, we found ourselves in a situation where there were some difficulties as we moved into 2014, in the summer of 2014, where we were fast approaching an 18-month period, which was in the Strathclyde policy. At that point in time, the General Secretary of Scoposa, which is the Scottish Chief Police Officer's staff association, contacted the then chair of the authority to look for a meeting to see what could be done. The chair instructed me to meet Mr Barker. Mr Barker and I met on 6 August, and we made a determination that we would move forward extending the policy on a case-by-case basis until such time... Extending the Strathclyde policy? Yes, until such time as a permanent place of work was determined for the senior officers. As far as I'm aware, the first time that was determined was on 31 March 2016. I recall the conversation clearly with Mr Barker because he used the phrase, which is uncommon nowadays, that the then chief constable had been humming and hoing and changing his mind regularly as to where the permanent place of work should be. That's how we got through to the point where the decision for me, when the DCC submitted a claim in relation to the relocation expenses, I had that knowledge. Further to that, I then still didn't take the decision to authorise a payment until I had spoken to the chair, and that's what happened. Gosh, okay. Well, I hope I'm not convinced that members of the public will follow all of that sort of convoluted explanation, but I'm still not clear whether you were following Strathclyde operating procedures or other operating procedures. I was pointing to the Strathclyde procedure at that point in time, but I do— So why did you go over the 18 months? Because the permanent place of work hadn't been determined for the senior officers. So you were just making it up? No, I met with the general secretary of Scaposa and that's what we decided to do at that point in time. That's what you decided, so you just decided to put your own rules in place? No, because I was instructed to go and sort it out by the chair. This cost the tax pair £67,000 in relocation expenses. I don't know anyone in Scotland that expects relocations to that magnitude, anyone. I have to say, convener, that I understand fully the issue here. This is tax pair's money, Mr Foley. You said you just decided to disregard or to overrule the Strathclyde procedures. No, the DCC had a contractual entitlement to relocation expenses. It was a contractual entitlement, as far as I'm concerned. Okay, so she was entitled to the £67,000 relocation expenses. How about the £53,000 in her tax liability? The Strathclyde policy had a clause in it, which said that the board of Strathclyde police had decided that payments to officers for relocation should pay the tax. The organisation should pay the tax. There's a clause in there. So you decided to stick with the Strathclyde regulations on the tax liability point, but not on the relocation time limit? No, no. I decided to stick. We're not on the time limit because Andrew Barker and I met, as I say, in August 2014. I was instructed to go to that meeting by the chair. I informed the chair, and it wasn't Andrew Flanagan. I informed the chair of the outcome of that meeting, and the policy continued thereafter. I accepted that it's a lot of money. I absolutely agree with that, but it was a contractual entitlement. What I did before leaving was to say to both the auditors at the audit clearance meeting and to the audit committee that my recommendation, even though I wouldn't be there to see it implemented, should be that we need to look, both within policy and within police regulations, to apply some kind of cap to relocation payments. I think that that would be very advisable. But why were the payments coded as childcare vouchers? I was advised by the chief financial officer and the head of financial accounting that a member of the finance staff had made a mistake when they coded it. I also recommended to the audit committee that we needed to look moving forward, even though it wouldn't be me. We needed to look at some way of improving the checks and balances in relation to payments to senior officers. In my view, it's a simple way to do it because there aren't very many senior officers to have a report prior to the accounts being submitted to Audit Scotland each year, which simply sets out that those are all the payments that have been made to senior officers. Reallocation payments are not that common, but it would be important to see all payments of any type of expense, and it wouldn't be difficult to do that. I think that that would have been improving moving forward as well. Thank you, convener. Stay on that point if you would, Mr Foley, very briefly. You have said a number of times that the payments that the convener is referring to were contractual, but then you talked about the Strathclyde policy. Could you just give me a bit more detail as to how the Strathclyde policy is ported into an officer's contract such that it becomes a contractual entitlement? The contractual entitlement is referred to stand separate from the Strathclyde policy. The officer has a contract which she has given that contract when she gets a position, and it says in the contract that you will be entitled. If you have to move home—I am paraphrasing here—if you have to move home, you will be entitled to relocation expenses, so it stops dead on that. My own view is that— So, let's be very clear that the contractual entitlement is to relocation expenses, but not to the sum set out in the Strathclyde policy. Is that correct? No. The contract stands alone, so there is a contract that has a clause that says that the officer is entitled to relocation expenses. But it does not set out the contractual amount of those relocations. It does not set out the amount. That is what I am asking. Somebody made a decision at some point to the value to use the Strathclyde policy. In February 2000— Is that correct? Yes. Thank you. So, just moving back to something that Colin Beattie was asking you about, but I would like to ask Dr Margin. August 2017, I believe that the SPA made the final decision about the role of the chief exec by correspondence. Is that correct? The SPA made the decision regarding approval of the costs associated with it. The decision to progress to a redundancy of the role was made at a board meeting on 7 June. What proportion of the board made both of those decisions, please? How many exceeded to it and how many rejected it? I do not have that information today. My recollection was that I do not remember a rejection, but I would have to go back and provide you with that information. I would be grateful to know if there was any dissent from the board. Mr Hume, perhaps you would like to comment on that. Was there any dissent from the board either to the final decision about the chief executive or starting off the consultation? Not that I recall. No dissent. Paul Johnson's written submission of 18 January said that the Scottish Government officials contacted the SPA on no fewer than three occasions in August 2017, raising concerns about the payment to the outgoing chief executive. Was the full board aware of those concerns? Were they clear about the Scottish Government's interests in that? The board was clear that the Scottish Government had an interest in it. All of the board? I would have updated the board at members' meetings on the conversations that I had. I made the chair aware of the concern around the package. Did the chair then direct us to Mr Flanagan? Having been made aware, did you dissimulate that? Were you comfortable that the entire board was involved in this and knew what they were talking about? I believe that the board was aware of both the concerns that had been expressed by the Government and the basis of the calculations. They were advised by Dr Marchant about the way forward. I do not think that any board member would say that they were not properly informed. A final question for me. I have posed this before about a settlement agreement, codifying what Mr Foley received when he exited. I understand that the SPA considered a settlement agreement but ultimately rejected using a settlement agreement. Yet there is some form of contract in place, we have heard. Why did the SPA reject using a settlement agreement? We had some discussions with Mr Foley and it was clear that the settlement that he would have been looking for under those circumstances would have exceeded the ERVR arrangements. Therefore, we decided not to pursue it. Just for the avoidance of doubt, when you say we, does that mean you, Mr Flanagan, or does that mean in consideration with the whole board? I had discussions with him, I had discussions with Dr Marchant and we reported that to the board. Just explain to me if you would, because my understanding of a settlement agreement involves saying to the outgoing employee, here is a large payment, in return for which you will sign away your rights to sue us, to take us to tribunal, to say nasty things about us, something like that. I am sure that Mr Foley would not have done that, of course. However, you explicitly decided not to go down that route. I am struggling to understand why, when a rather large payment that Audit Scotland has said may not have been entirely necessary, was being made. Who took that decision and was it in conjunction with the HR department? I believe that it was not a discussion with the HR department. Dr Marchant had a number of conversations with the HR department, both she and myself. I think that the HR department had discussions with the Scottish Government and the Scottish Government indicated that they would not be happy with any settlement when they exceeded the amount of the ERVR scheme. Did the Scottish Government say that you should be putting them under a settlement agreement? Quite the reverse. I think that Mr Johnson set out some of that in his letter that there is a presumption against confidentiality agreements in settlement. I am not talking about confidentiality agreements. Mr Johnson was clear that he did not want to see a settlement agreement used in this process. It would exceed the terms of the ERVR scheme. No, not necessarily. That is a matter for negotiation. Willie Coffey In terms of another matter, the policing 2026 strategy and the development of that whole strategic approach to ICT, there has been some doubt expressed about whether there is sufficient technology delivery capacity within the service to deliver that. First of all, could you comment on whether you agree with that, and could you let us know where we are in relation to the development of the ICT strategy? I will take that for me, Mr Coffey. We had an audit committee this week on 22 January, and at that committee we received a management report from our internal auditors who prepared a management report on ICT preparedness for Police Scotland. The committee was pleased to receive that report. It is a very well-written and considered report. The reason that the committee was pleased to receive it was because there have been a number of internal audit reviews that have indicated difficulties around aspects of ICT. We all recognise across the board the important role that having a proper ICT vision and strategy has for the delivery of 2026. What we felt in the audit committee was that we have now seen a very considered, well-articulated statement of the difficulties and issues around ICT that provides an excellent basis for the development of an ICT strategy—probably better than we have had before. I understand that within Police Scotland arrangements are now being taken forward to deliver a draft ICT strategy by March 2018. That is my understanding of where we are. The question is whether there is sufficient capability within the service to deliver it, because it was somehow expressed in a formal report about that. Do you now think that you have the capability to deliver this? Plainly, in the management report that we had at the audit committee the other day, it indicates concerns about that. We now need to enter into a discussion with Police Scotland—from an audit committee point of view—about the arrangements that they are putting in place, first of all, to design the strategy. Then, obviously, we will be looking for assurances about the delivery of that strategy. Given the experience that we had with the I6 project, when will we be in a position of comfort to persuade members of this committee and the public that the capability is there to deliver it and the schedules and timescales can operate in order to deliver its success? Given where we are, we have now got this review. Arrangements are in hand, I understand, to deliver a draft strategy by March 2018. That will give us the scope of the work involved. From the audit committee perspective, we will be looking for assurances about implementation and delivery. At some point, it is not too far distant after March when we had a chance to reflect on the ICT strategy as that moves forward for approval. Obviously, we need that implementation strategy underneath and that will reconcile the resources and the challenges that the strategy sets out. Bill Bowman Thank you, convener. If I can maybe look at a slightly bigger picture aspect, Mr Hewm, are you chair of the audit committee? Do you have an auditing qualification? I don't, no. I mean, we started this, I'm looking at the 2016-17 audit report, which had a number of recommendations. We've gone on to look at some of the items that are in, at the moment, an audit gap period. It will appear, presumably, in the 2017-18 report from Audit Scotland when that comes out sometime later in the year. We've heard comments about certain transactions, were they correct, were they correctly recorded. What has the audit committee done to be satisfied that we will not be having those sorts of comments going forward? Well, in terms of its normal course of business, the audit committee receives evidence-based reports from the internal audit service, and those reports identify recommendations for action. Over the course of the time that I've been in the chair and the current providers have been providing the internal audit service, there have been 227 recommendations for improvements. The majority of those are either completed or in progress. That gives us, if you like, a pattern of assurance through the audit committee about identifying areas of risk around internal controls and so on. When we receive the annual audit plan, the audit committee typically takes a meeting to receive it and to hear from the audit committee— Is this an external plan or an internal audit plan? Sorry, I'm talking about the annual audit plan that is provided by external audit. That is received when we receive the draft accounts, and on this occasion we receive both documents on 22 November. Both of those documents go to the board and on this occasion went on 28 November. The audit committee receives the audit plan again at its next meeting, and that, along with the section 22 report, we consider that our meeting, as we have done in previous years, this week on 22 January. We have indicated that we accept the terms of both reports. We have taken an instruction that management is now required to develop an implementation plan around all the recommendations and the actions that are set out in the annual audit report. That is being included into a tracker, and regular reports will come back to the audit committee on the implementation and delivery of the action that is set out in the annual audit report. Do you have an additional question? If I may, yes, please. Can you tell me how you structure the internal audit? It seems to me that, if I understand it, you can have an internal auditor in the organisation with their own staff, you could have an internal auditor with an outside body doing the work, or you can totally externalise it and have somebody else doing the work. Are you the third case? We are. The internal audit service for Police Scotland and the SPA is provided by a tendered private company. Given the issues that have come up close enough control over what is going on in the organisation? I think that it does. You asked in your first question if I have an auditing qualification. I do not, but I have served on audit committees and worked on audit committees as a professional and worked with internal audit services that have been in-house over decades. I need to be careful what I say here because we are about to enter into a new tender arrangement for a new contract, but I have to say that having experience working in this way, I am content with that. I believe that we have derived a good service from that arrangement, and that is without comment on the company providing service. My feeling is that if you do not have one person who is an internal auditor with their sort of feet under the desk and knowing what is going on walking the corridors, somebody coming in and just doing that job with a programme may not give you the right answer. I would not challenge your view, but it is an interesting perspective. My perspective is that the head audit partner is very well acquainted with the issues. You may know yourself that as they put together the internal audit annual plan for the coming year, they engage in a wide range of consultation with management staff, stakeholders and, through the work that we do, on risk. Confident of their abilities, Mr Hume? I am. I will take you back briefly to the Deputy Chief Constable's relocation payments. Nicola Margin and David Hume, have you expected those decisions to come past the board? The decisions regarding the amounts, if they are within the delegated authority to the CEO, then no. I would not have expected approval of the amounts. Okay. Because Audit Scotland has said that they would have expected additional governance arrangements to support the decision that Mr Foley made on the relocation expenses. Do you think that is wrong? No, I said that the payment of that, if they are within the delegated authority to the CEO, I think that the challenges regarding the 18 months and that decision, but as Mr Foley has reported, that was a discussion that he had with the then chair. I was not a member of the board at that time. I do not know whether the then chair had any conversations with the board. Okay. Audit Scotland has reported that he did not advise members of the Scottish Police Authority of the payments at any board meeting or committee meetings. Are you content with that? No, that is not what I said. I said that, actually, I would expect if an individual was going to want to work outside of a policy or an SOP, there would be some governance around how the approval for working outside of that was in place. Okay. Your take on this was that he was not working outside. He was working within his delegated authority, so there was no need to bring it to the board. What I said was that I believe that he was working within his delegated authority regarding the amounts that were signed off. I was not on the board at that time. I was not involved in whether or not any discussions were had between the then chair and the board regarding the circumstances in which the payment was made. So you think that it is fine that all of this did not come to the board? No, I said that. Sorry, I am struggling to get the difference. My, as part of a continual improvement and strengthen of governance, my preference would be that when there were exceptions to policy, that there was a governance route in place and depending upon where those exceptions were in the organisation, I would expect a grand parenting process. Would you prefer that these decisions did come to the board? If they were decisions that were associated with senior people within the organisation. Given the scale of those payments, would you prefer that this would come to the board? Are you happy that it did not? The board delegates authority to the chief executive with regard to approvals. If there are policies that are being… Dr Margie, please forgive me, but this is taxpayer's money and I really think that this is semantics. The Scottish Police Authority has a responsibility with what we do with taxpayer's money and we find that the deputy chief constable has been paid over £100,000 in relocation expenses and tax liability and you are telling me that you are content that it did not come to the board? No, I am saying that if the delegation of authority meant that the chief executive officer was authorised to approve payments of that value, then that is a decision that the board has made to delegate to the chief executive officer. However, I would expect as an improvement in our governance process that if those payments were subject because they were having a potential going outside of a policy or a process then I would expect an exception to policy and process to either go to an audit committee or to the board. Do you know if the new interim chief officer's contract has been fully reviewed to ensure that it does not allow him to take actions that would be more appropriately taken by the board? That would not be in his contract, that would be within the governance documents of the board. I confirm that with my colleague here. Can you give any of the fruits helpful? When I referred earlier to recommendations that I made before leaving, that was part of the recommendation that in future, this was an unusual circumstance and I accept that, but in future then my recommendation to the audit committee was that all such payment should go before a committee in much the same way that Dr Marston has just said, whether it is people, whether it is audit, that is for the members to determine what I have gone now, so that was a recommendation. Thanks, Mr Foley, that is helpful. Can I ask, has the Scottish Police Authority considered reclaiming any of these relocation expenses? Dr Marston? Not that I am aware of, but I have not had any discussion regarding those expenses. Can I ask all of you if, were any of you contacted by Scottish Government officials before today's meeting regarding the evidence that you were to give today? No, not at all. Can I thank you all very much indeed for your attendance and your evidence this morning? I now close the public session of the committee meeting.