�fallach i chi ddaeth y Gwaith Ymgyrchef yr 28 gwasiwyr 2018 i gyda ni maen nhw John Finney a Shona Robison. George Adams is substituting for Shona, and we welcome him back to the committee. Agenda item 1 is consideration of whether to take items 5 and 6 in private. The first is consideration of possible witnesses and the second is the draft report. Are we Agenda item 2 is an evidence session on post legislative scrutiny of the Police and Fire Reform Scotland Act 2012. I refer members to paper 1, which is a note from the clerks, and paper 2, which is a private paper. Panel 1 is the first panel with Simon Rouse-Jones, HM, Chief Inspector, Scottish Fire and Rescue Service, HM Fire Service Inspectorate in Scotland, and Douglas Scott, Senior Policy Advisor, and Graham Jones, Safer Communities and Community Justice Manager with Scottish Borders Council. I thank the witnesses for their written evidence, which is most helpful to the committee in advance of what we are hearing from you in person. Mr Rouse-Jones has indicated that he wishes to make a short opening statement, up to about a minute and a half, if you could, to update us on the Scottish Borders Council. Scottish Borders Council also, Douglas Scott, also a brief opening statement. We start off with you, Mr Rouse-Jones. Yes, good morning, panel. I felt it would be important and helpful for members of the panel, if I just mentioned that the fire service inspectorate is totally independent from both the Scottish Fire and Rescue Service and from the Scottish Government. The role and purpose of the inspectorate is defined in the Fire Scotland Act of 2005 and exists to provide independent risk-based and proportional professional inspection of the fire and rescue service. Its purpose is to give assurance to both the Scottish public and the Scottish ministers that the service is working in an efficient and effective way and to promote improvement of the service. Operational service delivery is a matter for the chief fire officer and the services board. It is important that the inspectorate doesn't get involved in the day-to-day delivery of the service. My responses, panel, is therefore to be in respect of my observations within the inspectorate's role. Thank you for inviting us to do that. Scottish Borders Council was a pathfinder local authority to pilot the local scrutiny arrangements that came into place with the Police and Fire Reform Scotland Act 2012. As we will see from the information note that we circulated to you over the years, we have worked very closely with Police Scotland and the Scottish Fire and Rescue Service and we have built up very positive relationships with those organisations. This joint working has been underpinned by a co-located safer communities unit located within Scottish Borders Council, which Mr Jones here manages. This has enabled us to undertake a range of successful prevention and early intervention initiatives. The council has used a community planning and partnership approach to work with the Police and Fire and Rescue Services, which comes through in the scrutiny arrangements and in developing and taking forward both the local police plan and the community fire and rescue plans, and both of those plans links with the community planning work of the counselling partners. Thank you very much for that. We move straight to questions. Can I start by asking the panellists that the committee has heard varying opinions on whether reform has actually achieved benefits in terms of service deliveries? Could the witnesses expand on what they see as the main benefits or negative consequences of the 2012 act? Who would like to start? I'm more than happy to start if I can. From our judgment, I believe that the reform process is currently providing effective impact with regard to what it was there for. It certainly met the front-line responses and the specialist resources. For me, the main area is that, if it didn't happen, there would have been significant cuts within the service across the pan Scotland. I believe that, certainly, there are varying degrees of areas within Scotland. Obviously, there are different tensions in there, but generally I think that certain areas within the legacy services would have really struggled with regards to being able to provide a service. For me, that was one of the main areas of benefits of the change of reform. It has certainly brought some significant benefits. It has been able to have national resources, which have not been able to be easily transferred across Scotland in the previous legacy elements. It has brought uniformity and an element of being able to deal with the training across Scotland in a far more economic and effective way. We have had very close scrutiny and performance from the work of the board. That has been done on a quarterly basis. The meetings have been attended by both the local and divisional police commanders, times representatives of the police authority and the Fire and Rescue Board. That has enabled us to support and look at ideas for initiatives such as tackling under age drinking, support for young and old drivers and preventive theft and farms and rural crime. We have also been able to focus on things that are really important to the borders, and that comes through in the various plans. From the police point of view, tackling domestic abuse and the likes of road safety, which is a major issue for us, violent crime, anti-social behaviour, drugs and alcohol abuse and protecting people who are vulnerable. Obviously, with the demographics and the borders, there is a whole issue around older people and vulnerability and issues around missing persons. In terms of acquistive crime as well, in terms of rural crime, which is a particular issue for us. In terms of the farm rescue service, there is a lot of work on dwelling fires, but that has expanded into making people safer in their homes and visits to homes that have enabled information on vulnerabilities to be linked into other services. In terms of community resilience, in terms of non-fire amenities such as flooding, we have been able to get special units into the borders to help us with respect to that. In terms of road safety, which I mentioned for the police but also applies to fire as well, a number of initiatives that the Fire and Rescue have played very closely into, also challenging anti-social behaviour and reducing the currents of unwanted fire alarm signals. That is something that the initiative is taking place at the moment in the borders. As was mentioned, what is brought in is that, apart from the localised perspective, it has also enabled specialist support to come into the borders as well. Thank you and move to our next question, which is from Daniel. One of the key arguments that were made for reform was about the provision of consistency and access to specialist services right across Scotland. I was just wondering if I could ask Mr Wreth Jones if he has any general insights and any particular examples that support that. Certainly with regards to the national resources, there have been some significant examples around the flooding around areas of the major fires that have happened in Glasgow and so forth. It meant that areas could be moved or resources could be moved far more easily across borders and so forth of the existing borders areas than it was before. Certainly there was that facility, but it was a little bit more cumbersome. Now, as it is one particular service, it means that it can plan far better with advanced knowledge and so forth of being able to move the resources. Certainly within floodings, etc., it is able to pre-plan and move the resources around to that degree. Just following up on that, one of the phrases that gets used by the fire service itself is about the ability to have the right resource in the right place at the right time. The FBU has raised questions as to whether or not that can be stated without qualification. I was just wondering what your view is on that and whether or not you would share any of the reservations that the FBU has about that. I think for me the days are gone where resources should be static. I believe that risk is changing all the time and with a service that has that flexibility to be able to move things, serves the public far, far better. We used to have a standards of fire cover many years ago, which looked at resources just remaining in certain areas and staying in those areas. The standards of fire cover were set up really to protect property and it was there primarily for property related, going back to 1947 basically. Certainly now with the integrated risk management plans and all the other bits and pieces, it allows services to identify risk, be able to place the elements of the equipment in the right places and the resources. Although I can understand where the Fabricated Union might be coming from, I think that we need to move or the service needs to move into a more modern way of delivering its service. In relation to that point, one of the associated points that the FBU makes is that they think that it would be useful if we restored the statutory response times, which we no longer have, both in terms of providing a benchmark and also providing clarity in terms of what level of cover we have. Is that a point that you would share and reflect at all? No, I wouldn't agree with that at all. I believe that by being able to be far more flexible and able to identify risks, it should be done on risk rather than on a prescriptive approach. By moving resources around to meet the risk, it is far more effective and far more safe for the community and also for the service itself in being able to deliver that particular function. Clearly, I have directed my questions to Mr Rothschild, but if there are any insights that the Borders Council had, I would be very interested to hear them. If I might respond to that. What we have done in the Scottish Borders is to develop our scrutiny arrangements. Now, we have a monthly oversight group, which is cross-party membership. The police attend, Douglas Scott and myself also attend, and one of our analysts comes along. That gives us an opportunity to, with some political involvement, to look at what are the areas of demand that are being placed within the Scottish Borders, particularly around anti-social behaviour. As Mr Scott pointed out, traffic collisions are a particular problem for us, particularly those that are serious or fatal. We agree that, as a monthly work plan, the police have independence on how they deploy their resources. However, it gives local involvement on what are the areas of concern. There is the analytical component, but there is also an opportunity for members to bring constituency concerns to that meeting and to have a direct conversation with the police about it. Clearly, we can offer up resources that we have within the council to support the police activity. One of the things that we are looking to do is to put a bit of breadth into that, so that the fire service is an attendee that could potentially come to that, because it has something to offer, and it is not just a single organisation's responsibility. I think that there is a collaborative nature of the work that we do in the Scottish Borders. We do not have lots of resources across all the business areas, and a lot of the work that we do is in collaboration, so you have to have some support from the different organisations to achieve the end result, which is the way that we have tried to develop things. Your point about national resources, the road collisions are a serious problem for us, and, although local officers do work around speeding, visibility, road checks and those kinds of things, what we have got is opportunities to get some additional cover through road policing or the safety camera partnership to try to improve our prevention response. Clearly, if there is a more dynamic serious incident, the police would just draw down the resources that they feel was necessary at that particular time. We have had situations in the borders where there has been serious crimes, and there has been no shortage of police resource to deal with those particular issues, whether it is around community reassurance, investigation or any other kind of specialist support services that can underpin that. One of the main drivers of reform was the financial imperative. To a large extent, Mr Scott, you have answered the first part of my question on your earlier answer. My question is, have front-line services been maintained at pre-reform levels? In terms of the—obviously, we have got to look at the exchange situation. The focus from the border spot of view is local and specialist, and we are very well aware that nationally we have seen a rule coming together in terms of specialist services. As Mr Jones has pointed out, when we have had serious issues around serious crime, we have been able to get to that specialist support and, for things such as the mergwys, savons and events like that, so when we have needed that specialist resource, it has come in. With regard to the local response, there has been resource change, but in terms of the outcome focus that we have on our police and fire and rescue plans, we have been holding the police to account and the fire and rescue service to account with regard to the various outcomes. Obviously, there is a difference between the fire and rescue service and the police, because the fire and rescue services have fire stations across the borders and a mixture of full-time and retained staff. Obviously, the police is a different approach from them, but we have tried to hold the police accountable for outcomes in the borders. We feel that, over the past period, we have maintained that going forward, but we recognise that there has been resource change. Mr Jones? I think that one of the advantages of the national service is the volume of information that is available to do comparisons between different local authority areas. The police quarterly report that they publish on their website, which is open to anybody to view, contains a lot of detail around the crime rates, what those different categories consist of, what the detection rate is like, what the rate of crime per 10,000 of the population. That is a particular advantage that you were in the past. You probably were not so aware of how you looked in comparison to the other similar areas for your families and councils. It is certainly a document that I use a lot personally, because, if we are going to do intervention activity, it needs to be evidence led. In my view, we do not have lots of resources that we can put in lots of different things without having some kind of analytical evidence to support what we are proposing to do. Certainly, although the scrutiny reports on particular matters in relation to the police and fire plans for the local area, that piece of information that is on the Police Scotland website allows you to get into the detail of it and really understand what the different categories of crime are, what the trends are and things like that are, because it is on a quarterly basis that you can compare last year with this year and so on and so forth. I think that that is certainly one of the advantages that I have seen that helps to work out actually you in a different place than other parts of Scotland. Do you much the same and what is the reasoning behind that? Do you understand what you are trying to achieve in relation to what the analytical picture is telling you? That brings me on to my next question. What effect has national policy had on local services or local communities in perhaps armed police and some of the big decisions that are taken? Do you feel that there is enough local consultation on that? If I may answer, certainly within the safe communities team, we are integrated. We have police officers, fire service officers, our alcohol and drugs partnership and our community safety team, which principally consists of staff who are involved with supporting victims of domestic abuse, but also our anti-social behaviour team, which I suppose is the core of it. We have a couple of analysts who do all the analytical work for us. I suppose that within our safety communities team and our planning process, what we try to do is to bring together the content or bits of our local community plan, our police and fire plans, our alcohol and drug partnership plan and any other things that have a more national significance, for example, legally safe for domestic abuse, and then try to localise that so that it is much more geared up towards our local circumstances. That is where having the analytical information is really important because it allows you to get a better understanding of where we are in relation to what the strategy of the plan is, what it is asking you to do and then how that translates into what the local picture is like and our performance information and the way that we report. As I mentioned earlier on, around our oversight group that we hold monthly, all that is to try and put a much more local perspective on the delivery of service. You can have something that is quite high level in the language that you use, but what we want to do is to convert that into local delivery. For example, if you take the collision targets around killed and seriously injured people, what we have done there is an enforcement component to that, but we have looked at who are the core groups and who are the most vulnerable in our roads. Over 65s tend to be vulnerable groups who have done intervention work around them, doing inputs across the borders and offering them a refresher drive with a driving instructor just to bring their driving skills up to scratch. We have a newly qualified drivers course that we are supported by the Institute of Advanced Motorists. We will also do a number of sessions for those young people who are just on the cusp of getting their provisional licence to try to influence their behaviour, but also influence their behaviour of their passenger in a car with another young person. There are lots of different things that we do. Is there any policy that you have to adapt the national policy to suit your local needs? Is that fine? Can I ask how many policy analysts you have? We have two, so we have one that deals with, principally, four anti-social behaviour. Information statistics officers are a police employee. We have another analyst who is a council employee. She does the preparation, for example, for the scrutiny reports that we have. She does the analysis for the oversight group that we run monthly. She provides youth bulletins, so she provides all the analytical support in collaboration with the information and statistics officer. Can I just ask Mr Ruth Jones if you can relate that question to the fire and rescue service about national policy? In two parts, I can. With regard to the resources element, I think that it has been well publicised that there have been no station closures. What has started off with 356 is still 356. The way that the service positions itself within the community, obviously it is very much under the new legislation so forth, very much front and centre now, I believe, of the community delivery of safety and so forth. I think that the service from the work that we have done has shown that the community empowerment act and the roles and responsibilities have been really taken forward with regards to the service and they have even sort of very much now part of the development of community planning response and the whole element of developing that as well as within their transformational agenda. I suppose some of that is that they have really embedded themselves into the communities. I think that the legislation bringing a requirement for a local senior officer there has made it far more localised but obviously with a direction from the service itself. Obviously at the beginning there was a requirement to bring things into the centre to ensure that there was a common approach across the whole of Scotland but now those rains are being released and we are recognising that and so they are very much now involved in the local planning process whereas before it was very much a template and we are really pleased to see that and we were able to report that within some of our findings on the local air inspections that we have done. Things like the local liaison officers now are embedded in some of the councils so they are right there to be able to deal with things. There are secondes in some of the housing associations particularly in Glasgow so they are really into the nitty gritty of delivering a community safe environment for the whole of Scotland. I am just interested in Mr Jones' description of the type of engagement that you have had both on the fire side and the police side but it struck me as you were speaking there that a recent experience I had at a local level was in relation to taser training and deployment of officers and while we received a briefing about the national picture and the rationale behind it which I think we all understood there were descriptions of a 3% I think it was deployment across the country. What was not made clear was the local implications of that and within Orkney it soon became apparent that the numbers that were going to need to be trained were significantly higher than that and I know that the elected members on the police board were somewhat taken aback by the figures and it suggested that the engagement about the rationale for doing this. At a national level people understood the rationale for doing it at a local level. I do not think that it was as well understood and I am just curious whether on that particular issue you felt that the engagement that you had about the needs case was as robust as it might be if you had always had a line of sight about the number of officers that would be going through the taser training was adequate from the perspective of yourself and indeed elected members? From my own perspective it was raised at one of our scrutiny meetings a few months ago and the rationale was put across and I do not think anybody there had a particular strong view that that was not a credible argument in case. I suppose as far as numbers are concerned certainly from the police service they are providing a 24-7 service 365 days a year and they need to build into that resilience so I think that if you were talking about an eight-hour day Monday to Friday the number probably looks quite large and I cannot remember offhand what the number for the Scottish board was but if you are then extending that across a 24-hour period building in rest days and all that kind of thing you need a critical mass to provide a sufficiency of operational cover and clearly there's no point in introducing something if you've not actually got the right resource at the right time in the right place when you actually need it. I mean the needs case at a national level in terms of increased threat levels and all the rest of it I think was fairly well understood. I think at a more localised level was there ever a debate about a change in threat levels that necessitated that rollout at a local level that matched what was deemed to be necessary at a national level? So while I go since it was actually raised so I can't remember that exact basis of the discussion but I think there was a view that you know there was a kind of incredible need and certainly I mean I suppose speaking from my previous occupation when I was involved in that kind of work and you had a something that took place in the borders you know clearly time by quite a critical component and actually having some sort of resource locally based because it's not whilst the borders yes it's a relatively low crime rate and violent crime is thankfully relatively low there are occasions when you need to have those kind of specific resources and may need them pretty quickly to deal with a particular incident so I suppose there was acknowledgement that yes we may not have the profile like some of the big urban areas but nevertheless you know something can develop out of very little and you need to have the ability to deal with that and I think that the the kind of taser argument because they're probably a more for for the circumstances that you potentially go to find yourself in they're probably a more flexible tactical option than some of the more conventional firearm equipment I mean I appreciate I've slightly ambushed you I mean if there are further thoughts or observations you want to share with the committee I'd certainly welcome that but that's helpful Yeah could I just confirm Mr Jones, are you are you confident that when a national decision is taken you're consulted in advance of that decision being taken or are there circumstances where you're reactive and you go to your scrutiny panel and you say well how are we going to manage this? I think Mr Scott's probably, you're better able to answer I think. Basically at the scrutiny board the local police commander and also the local fire and rescue commander go through the various things which happen nationally and you know obviously you know we've gone through a process early on that there were some things you know like police counters etc where we could have done with more extensive consultation but we've gotten to a process now where we make we have indicated very strongly we need to be aware of these things so we discussed these things through through that in the initial presentation from the local police commander and fire and rescue commander at our meetings so basically we feel that we've got a into a position now where we get early warning of things through that work and indeed we as a board have been at the forefront of ensuring that we have closed national local relations and that's really led to the police scrutiny conveners forum for example which is meeting today in Glasgow through the working cosla and so we feel that we have now got into a position where we are getting early warning of everything coming down the line so there's no surprises so we're able to work together to work through solutions and react to two issues. Yeah so the point is you're able to influence the the decision through the consultation. Liam McArthur has just asked his question so Liam I'd like to follow on from Rona Mackay's question around policy. Insofar as one criticism of centralisation it might be that overall policy and budgetary control is held very much centrally so do any of you have any views on whether there would be benefits derived from devolving some aspects of policy some aspects of budgetary control to the local police commanders or the senior fire officers to directly improve their local services? I think as I've already sort of expressed the there was rightly a need to bring things more central to start with to be able to understand where the variants were and trying to have a standard approach but I think that as time goes by and there is needs to be a more local delivery element then I think with that naturally my personal view is that with that needs to be a lot more autonomy within the local senior officers element and obviously some of that will come with budgets but there is a risk there that you could then start moving out towards having a number of single inverted commas fire services if you're not too careful so it's a careful balance it's a discussion which isn't for me it's for the the management board and for the chief officer but I do believe that there is a need to release the reins if you truly want community safety and delivery across the whole of Scotland. I'll come back to that if I mean a second but I think this is an evolving process and certainly if you look at both the Scottish Borders local police plan and also the community fire and rescue plan you'll see that we're getting into things like looking at strategic assessments, looking at consultations with local communities, partners and really we're evolving as we go along because the issues that we're looking at you think I mentioned earlier on about take the police you know we're working together now very closely on things like domestic abuse we're doing a unit which Mr Jones looks after it's a very successful unit in Tartland domestic abuse which from a rural point of view has been game-changing we are working together on terms of road safety, anti-social behaviour, also the violent crime linked into both counter-terrorism and serious organised crime and also in terms of alcohol abuse and I mentioned earlier on protecting people and also that is getting us into very close working it's linked into the co-located work that again it's been worked through through Mr Jones and you can see in the fire and rescue side the linking again to the community planning themes and this wider sort of approach that's being taken so I think that we're in a evolving situation I think as time goes on we'll be able the issue but resources may come and it may be in a good addition but we need to I think we're seeing this evolving as we go ahead and I think we're seeing a lot of progressive things happening because of that so Mr Scott do I take from that that you would agree with Mr Rice Jones that there would be benefit in devolving policy and budgetary control to a more level level I think there's a case for looking at that but I've got the same issue in terms of risk we've got to ensure that the specialist resources are there because we're definitely changing times we're into new technology now much more sophisticated approaches to crime and I think we've got to be aware of that changing situation and people are more mobile as well we're seeing people in the borders working in Edinburgh etc you know and people so really it's very much a much more mobile mobile world world and so we need to take all that into consideration but I think there is a direction of travel that needs to look at devolution if I may stay with you Mr Scott the following on you may in a roundabout way of answer this question the final policy intention of the act was to strengthen the connection between the police and fire service and the local communities and the elected representatives do I take it from your previous answer that your view is that that has been achieved and if so to what extent completely or could there be more put it this way I think it's I said to you an evolving situation we've done a lot and I think I've been trying to sort of make the point that really we've got a lot of initiatives going and I think we need to develop that much further in terms of early prevention and prevention so as I say it's I think it's working hand and I think we've so far I think we're making quite a lot of progress and certainly the work we're doing in terms of locality work we're doing to locality planning now working with both fire and rescue and police I think that will be an important important point as well so I'm normally saying is that it's a movie it's moving forward and we just have to we need to need to look at what's possible in terms of devolution mr earth jones do you agree my i suppose my response originally to you was around the finance and I think that's where I you know where you came from originally with regards to policy certainly as I mentioned earlier there are now needs to be a releasing of the reins with regards to it and I think it's right and proper that where the services have a different need within the community then there will be a need for a different policy but I think there will be mainstream policies and there will be within the local plans some need for some slight variance of that but that needs to be very carefully handled and managed so that it doesn't go off like topsy and but do you believe that the the actor the impact of the act has strengthened the the connections so thus far in terms of between the elected representatives and the local communities absolutely as I said right from the start I think that the service now it was to a degree but it's absolutely embedded now within the community and with the local authorities and so forth and working hand in hand they are forming part of the community plans which are the risk areas within those particular communities good morning panel you've talked a bit about the the safer communities board and I know that it has held up as a model of best practice could you elaborate a wee bit further on what the composition of the board is I know you touched on it earlier that yourself Graham Jones and Douglas Scott are on it but can you elaborate a bit more on the composition okay well from the very beginning what we wanted to do was look at having a you know a wide approach to this so we have members from the council both elected members from both the administration and the opposition and also we have representatives from key partners nhs borders scottish borders house network which is represents the register of social landlords who are very involved in tackling anti-social behaviour and community safety also the voluntary sector and they have a big role to play in terms of community safety and also the business sector as well so it consists of six council members and four representatives and it's chaired by the the council in that in the case it's council tumble George tumble who chairs it and it meets on a quarterly basis and we very much take a consensus approach to decision making it's very much advises advises the council and I think the huge strength as I mentioned it was based when it came together we had the co-located community safety unit behind that so that's given a real boost to that and apart from looking at police and farm rescue issues we widened it to look at community safety as a whole through the work Mr Jones does so we've got a very holistic take on the way forward so we look at the police and fire performance how that's going look at national issues we look at the police and fire performance but we also then go on to look at particular issues things like we've had presentations on things like rural crime, wildlife crime, also things like community justice, road safety, we looked at the coast guard service, looked at other services as well to see how they might link in and from that there's been real support for a whole range of community initiatives around driver awareness, motorbike safety, things like water safety, prevention of alcohol and drugs, also tackling domestic abuse and violence against women and rural crime and the rural crime has involved work with farmers and that's also included the farm rescue service as well in terms of safety and we've had really good plaudits from from that work so we feel that it's certainly what we've tried to do is very get very have very close working with the police and farm rescue services and with our elected members we've also had visits as well to far stations and also we've been three times now to the police control centre to look at how the handle calls at Bilson Glen and that's been very successful as well taking people to actually see the elected members to see and the partners to see what's happening there. I was going to ask you about how the specific mix on your board allows you to deal with the issues and the tour was going to ask about domestic abuse and missing people. I think you've referred to domestic abuse here and it's obvious that you feel that the board that you've got just now has helped you to identify ways to deal with that. What about missing people? Are any of you interested in the Parliament here as well? How does the current mix and I suppose as a supplementary on that so that you can answer it together? It would be if you were to be tackling an issue and it was another organisation or service that you felt would be beneficial, how would they get themselves on to that board? Would they be invited or? I suppose what Mr Scott's care referred to is the scrutiny board and I suppose if there was additional members being invited in that would be a conversation between Mr Scott and the chair. What I alluded to earlier was our monthly oversight group, which has nine elected members that attend that. Some are also members of the scrutiny board that we've got that meets quarterly and we've got a number of council officers in the police that attend that. I think that the two things complement each other. One component is around the scrutiny part and the other is about looking at what are the issues in relation to what we're identifying through analysis but also what are elected members bringing to the table as specific constituency concerns and what we're trying to do is marry the two things up and then get some kind of consensus of agreement about the priorities for the forthcoming month, which tie into what's in the community plan and what's in the police plan as well so that we're not off a clear linear structure that we're working with and that we're not off deviating across different things. I think that the two things complement each other. We've only had that oversight group since April of this year. We're going to review the composition of it in December because I think that there's an opportunity to put a bit of breadth into it. For example, the fire service should probably be at the table and there's a couple of others that I have in mind that should also be there because when you start looking at some of those problems, they're not one-dimensional. I think that it's not necessarily a law enforcement problem. It could well be that our registered social landlords have got a role to play in that or neighbourhood services from the police side or if we're getting delivered at farce, for example, it might be something that the fire service could support with. I think that at the minute it was to get the thing going but now we've actually got ourselves into a natural cycle with an opportunity to put a bit of breadth in. Clearly, if we felt that there was an organisation or someone that could support that, we could either bring them in on a short-term basis or invite them in as a longer-term member. Can I maybe just come in on that, to pick up on a part? We talked about the involvement of the fire service in other areas. We've just recently done an inspection of the Highlands and what they've done there is they've devolved the community planning elements into eight local areas, and the senior officers of group manager and the LSO up there actually chair two of those committees. They're not necessarily fire-related, they are within all the other challenges within a community. What I'm trying to indicate here is that they are very much integrated into the community to deal with, picking up on what Mr Jones was saying, the cross-referencing of risk across the community, and they're able to chair other areas other than fire. Certainly, the feedback that I've had was that they've expressed how effective the service has in performing, in leading the local community within their chairmanship. Jenny, we've covered local scrutiny in some depth this morning already, but it does seem to be the case that, in the Borders anyway, it's working well. I wonder perhaps if you might be able to share with the committee what happened prior to reform in the Borders with regard to local scrutiny and how it compares, obviously, to the current status? Personally, I wasn't very close to that, because I've just been involved with the local scrutiny arrangements that we've set up in the Scottish Borders. Before that, we were part of loading in Borders, both police and fire and rescue boards, and I don't have that knowledge. I was a member of Llywyddyn and Borders Police, and I've been a member of Police Scotland before I joined the Scottish Borders Council. I didn't actually work in the Scottish Borders in either force, but I did work in West Llywyddyn and Edinburgh. I suppose that in West Llywyddyn the arrangements had started to move towards what looks now like the scrutiny arrangements. We did have, I suppose, a scrutiny panel, but essentially the divisional commander and other senior police officers would go along with the fire service, and members of the council would scrutinise around performance. It wasn't just police performance that deviated into social work and education and those sorts of things. Certainly, from my point of view, it was quite a good stepping stone between where we were then and where we've come to now, but notwithstanding that, there was clearly the old police boards, which I only ever personally attended once. I think that, although there were representatives from the different councils there and there were cross-party elected members, it was a supposed to have direct interaction with chief constable at that time, so you probably weren't getting into the detail necessarily that I think you're able to now. Obviously, we've got the divisional commander, but we've got other senior police officers and the fire officers come as well, so you're actually concentrating on one particular area rather than a scaled-up version of that, where you're perhaps touching into some areas, but not lots, whereas I think that now we can get in much more into the munitiae of what's actually taking place. If I could refer back to my comments earlier about the availability of performance information from across the country for each of the 32 local authorities, there's a really rich picture in getting a good understanding of how the borders are positioned in relation to other parts of the country, what are the things that are affecting us but perhaps aren't affecting other areas, or do we need to put more of an effort into certain things rather than others and things like that. From my point of view, it has provided a much more localised understanding, because clearly the police would understand the business, but not necessarily other key partners, not in the same way. I think that it's probably, in my view, achieved that. Thank you, that's very helpful. Simon Rose-Jones, I'd like to go back to the point that you made with regard to local liaison officers, because you said that they're now embedded in some of the councils. Do you have any idea how many of the councils they're embedded in, and does each of you have a view with regard to good practice in terms of whether or not that should be happening par for the course across the country? I can't answer whether the guys are the first part, because we haven't covered all of the areas within our local area inspections, but we have come across a number that have been embedded. With regard to my view with regard to it, I think that it absolutely is an area that could be developed. I think that it's far, far better to have a single unit of cross-reference of organisations within one room that can meet on a regular basis and brush ideas and thoughts across each other on a regular basis. In short, I think that it's a very good idea. That concludes our questioning. I thank all the witnesses for attending. That's been a very encouraging evidence session, and we'll now suspend to allow for a change of witnesses. I welcome our second panel today on our scrutiny of the police and fire reform act, Kate Frame, commissioner John McSporrin, head of investigations, and Michael Tate, head of communications with police investigation and review commissioner. Also, Diego Key Ores—hopefully that's right. I thank the witnesses for their—oh, I should say who—the Scottish human rights commission from there. Can I thank the witnesses for their written evidence, which is so helpful to the committee in advance in the view that you are appearing before us today? We'll now move straight to questions as our witnesses are content and understand not to make an opening statement. Starting with Liam Kerr. We heard from the SPA in written evidence that it puts information in the public domain in response to queries about the information that the park publishes, but its preference would be to have a confidential process. Would that be the park's preference as well? If so, what measures are you taking to ensure confidentiality? To your experience last year, we too agree that there should be confidentiality around the process. Like the SPA, I have determined that in future we will not normally provide comment on the senior officer with conduct investigations. We've adapted our policy to that effect. You've adapted the policy, so that's in place now. That is going forward how it's going to be. The park is enabled to review non-criminal complaints about the police once they've gone through Police Scotland's complaints process. A concern has been expressed by the park about the amount of complaints that are being referred. Could you explain that in a bit more depth? Why do you see it as a matter of concern? I suppose that it comes down to the independence of the process. I have concerns in relation to the level of police discretion that continues to allow them to investigate some of their own actions. I think that there are three categories that I have identified that that discretion is extended in. The first would be at the recording stage, the second in what they interpret as serious incidents, and the third would be in relation to investigating both on and off-duty criminality. Unpicking those separately and individually at the recording stage, there is significant discretion afforded to the police at that time. How a complaint is initially recorded by the police will generally determine the route that it then takes. Recently, we have seen some evidence of serious criminal allegations that have been inappropriately recorded. We have examples of a complaint where someone had been unlawfully detained. That was recorded by the police as a quality of service complaint. There is another example of an allegation of rape that was recorded by the police as a quality of service complaint. There is a further example of someone who had been punched twice on the face. That was recorded by the police as excessive force rather than as assault. In all those cases, the only reason and the only way in which we found out effectively about how the recording process had taken place was because the complainers had made a complaint to the police, which had been dealt with. They felt dissatisfied, and they came to us seeking a complaint handling review. At that stage, we were able to refer the matter to Crown Office for their instructions in relation to the criminality involved. Had the complainers not taken the option of coming through the complaint handling process, we would have been none the wiser. They would have continued down that line. The second area relates to serious incidents. In section 41B of the act, and the regulations, the chief constable must refer serious incidents to me. That has afforded some discretion around the police interpretation of what is a serious incident, particularly around serious injuries. We have seen instances in which the police have actually advised a complainer to go to the hospital following an injury that they have sustained in the course of an arrest. The view taken was that that was not a serious injury taking it into the series incident in section 41B, so the police did not refer it to me. The person who went off to hospital was found to have a fusion to the bone rather than a fracture to their arm. That came to us by way of the complaint handling review process. There are issues that touch on the Human Rights Commission's submission in relation to serious incidents. One suggestion might be that, in place of the term serious incident, as it is in the legislation, in view of the recent, or at least over a few years now, the level or threshold for what is a serious incident as regarded by the European Court of Human Rights, we might have come to a point that it would be appropriate to, instead of saying serious incident in terms of the current legislation, to replace that with an inference of a potential breach of article 2 and 3. Thank you very much for inviting us to this evidence. Can I touch upon two issues? One is the confidentiality that the member mentioned before, and the other one is the serious incident. There are a number of requirements that the European Court of Human Rights has developed through jurisprudence, and this is what is known as positive obligations. Those positive obligations, as the committee knows very well, are procedural in character. Those four effective investigations are that the investigation has to be independent, effective, prompt, open to a public scrutiny, and involve the victims of the victims family when the victim is deceased. I think it's very important to say that these requirements of article 2 and article 3 and even article 8 have not been reflected either in the act or the regulations. Just going back to your point of confidentiality, and I think confidentiality is crucial and central to the process, but also the principle open to public scrutiny is equally relevant in terms of procedures and decision making that should be not only open but transparent in order to ensure accountability. Just to give you an example, the regulations and the act gave the parrot discretion to decide whether to investigate serious incidents or matters in the public and interests, and that discretion of course is understandable. That said, it's equally important that the parrot decision making process is open, transparent, objective, and independent to ensure accountability and public conference. Therefore, our recommendation is that there should be a requirement that the parrot gives reasons at least to those affected for a decision not to investigate any serious incident involving a person serving with the police or a matter in the public interest, as both are defined in the act and the regulations. So that's again the balance between confidence and public and open to the public scrutiny. In relation to serious incidents, yes, a regulation six or seven, for instance, could be revised alone the light of these ECH and the conventional requirements that I just mentioned, and the chief constable or the SPA with the discretion that have the discretion to whether or not refer these circumstances to the commissioner for independent investigation, and it's clear that those incidents might be low in some circumstances and might be, you know, frequent, but the point here is that they have the potential to engage article three and article H. So in these circumstances legal obligations to investigate might arise and it's not a matter of option, and the point and very well made by the commissioner is that the convention as you know is a living instrument. So human rights are evolutive in character, therefore the threshold of article two, three, and article eight is not as high as it was before. So what is considered a serious incident, no what it was considered a serious incident in 2012, it might not be the case that is a serious incident, is no a serious incident today. Liam Kerr. Thank you for that. If I could put another question to commissioner, but Mr Kerroth, if you come in if I see it relevant, I understand the problem, I think you've articulated that very clearly. In terms of a solution, so commissioner, one of the things you've proposed is to replace the serious incident, is not another solution to take the discretion away from where it currently sits and perhaps have an independent organisation or some other organisation that at least in terms of transparency would be independently making these decisions? Yes, I would agree that that would be the gold standard and it would make entire sense for there to be a completely independent process to increase transparency around the scrutiny of incidents that fall within article two, three, criminality, etc, because currently I do think that there is a fundamental issue about transparency. Yes. I think that the key issue is that both the legislation, the act and the regulations fail to mention the convention requirements, article two, three and eight, and this is, I think this is the key issue, and how this can be solved in terms of a solution, as you're saying, you can qualify the discretion in the act, so you can say that the incidents covered by article regulation six or seven require a qualified discretion on whether the incidents should be referred to the commissioner and are exercised in line with convention rights, so you modify the text, the current text, and you add those articles and convention requirements. I understand. My questions follow directly on from that, and I have to say that I'm quite disturbed by some of the things that you have stated. Did I hear you correctly saying that rape and assault were recorded as quality of service and incivility? Can I maybe ask you to just confirm that? I'm more important to comment on what is going on there. Is that incompetence, just a clerical error, or is it something more disturbing or indeed untoward than that? I can first of all confirm that, in relation to the example that I gave of unlawful detention, that was recorded as a quality of service. In relation to an allegation of rape, that was recorded as incivility. We were surprised equally when we received that through the complaint handling process. I think that there may be a combination of factors that have contributed to it, either by the way of incompetence or other more sinister aspects. The police sub-committee in February of this year received evidence from Chief Constable Mike Barton investigating the police counter-corruption unit, and he said that he was very frustrated in his investigations, in which he put the hands of incompetence, but also a high degree of defensiveness, especially from the legal department within Police Scotland. Would you share that view? Is that what we are seeing in some of those circumstances? In particular, I note from your evidence that you talk about inappropriate use of attempts to seek front-line resolution in terms of the non-criminal complaints that you consider would be appropriate for you to investigate. I think that part of the challenge is that front-line resolution encourages an immediate resolution that does not always satisfy the complainer, because we have quite a few examples where people go in to make quite serious complaints and they try to resolve it locally. I am not sure that you should be resolving a serious complaint locally. I think that it needs to progress to an investigation, whether that be a full investigation within the police as a complaint or whether, if it involves article 2 and 3, it then moves onwards to ourselves. However, I am not sure that you should be trying to resolve serious allegations locally through front-line resolution. I think that it needs to move up the ladder as to how it is investigated or processed. I believe that a colleague wants to ask a bit more detail, but I would just like to come back to that. How widespread do you think this might be? You stated that you are finding these out by accident because people are asking for a review of the police internal complaints handling. Do you have any sense of how significant an issue this is? No, it is very difficult to assess that because it only is if the complainers come to us after the event, and some may very well not. It is the old adage that you only know what you know that if you cannot examine it, you cannot tell the extent of the problem. At present, there is no audit of those processes to determine the extent of the problem. The problem might be small and there might be a few isolated examples, but unless you can actually look at the extent of the problem, how do you tell whether wholesale change is necessary or what thresholds to set? Very quickly. I think that it is important to modify a man's legislation in terms of human rights issues, and to stop there in probably this highlight, the issue of human rights cascading or human rights-based approach to policing, cascading down to constables. So, I think what these highlights is the lack of adequate training and guidance, which should be accompanied by a clear understanding of those obligations, article 2, 3, 8 and positive obligations, and thus apply equally to, of course, to the police forces to understand the decision-making process and the results of those decisions that they take in terms of those obligations, but as well, I would say, in terms of PERC. Just the final question in terms of alternatives, and you have already stated that the possibility of having a completely independent body to oversee all-complete handling. First of all, can I ask, is that essentially you making the suggestion that you as the commissioner and corporately should have that role? Short of that is the scope to do secondary reviews, i.e., giving you the ability to open up any particular case, perhaps to random samples or desk-based reviews or approaches like that. I would be interested in hearing, if you think either those are good ideas or indeed that there are others. Ultimately, are you saying that you as the PERC should triage, complaints and decide to hand over back to the police, rather than them deciding to hand over to you? I think that we would be well placed to do that. I am not calling for that to come to PERC as an organisation. However, I do recognise that having already gained the expertise and the body of experience that we have would perhaps make sense. I appreciate that that kind of model would be a huge transformation of the police complaints oversight system in Scotland, but perhaps that change is in fact necessary in the new environment just to ensure public confidence and ensure that we have a police complaints system that seems to be independent and fair. An essential component, as you have said, would be to ensure a proportional approach to that. I would see that there could be a role in, as you have suggested, triaging, that, although we may have a role in receiving, recording and then directing the complaints out to the appropriate organisation, that may be a solution. Maybe to put the scale of the problem in context a little bit, I note that from 2016-17 data, Pierce the Perk has asked to review the handling of less than 5 per cent of the complaints made about the police and, accordingly, most complaints are not subject to any independent oversight. So, police Scotland failing to do this and this 95 per cent is clearly a very worrying figure. Can you comment on what can be done? That could be viewed another way, and it could be that, perhaps, police Scotland are improving their complaints handling process, and a smaller proportion of the complainers are coming to us. I am not in a position to come down on either side of that argument, but I am presenting the alternative version to that. I suppose that it comes back down to the model that Mr Johnson has referred to about complaints coming into one independent organisation with a view to triaging them out to the appropriate recipients. Without knowing all the facts, that would seem to cover the problem and get over any perception that the police might not want to pass over certain ones. That is helpful. I think that we are back to Liam Kerr. I am not convinced that you are, convener. The 2012 act provides the potential for the perk to investigate any circumstances in which there is an indication that a serving police officer is committed to climb. The concern that there have been incidents where such matters have not been progressed by Police Scotland thereby negating the possibility again—this is the same issue, to an extent—explains how the process should work, where there is a failure in such matters. I think that you have already mentioned the triage system that you could possibly put in, but, if that happens on a regular basis, is there anything else that you can suggest? I think that the issue is already touched on at present, since most of that still resides within the police. It is the police examining themselves and taking the decisions just now, because there is no independent decision making at the first stage. That decision still rests with the police. The triage system where you decide will—where does this sit? Is it a criminal allegation that will pass it to Crown for consideration? Is it a serious injury or a serious complaint, in which case it deserves to be independently investigated? Or is it a more minor matter that can be resolved through local explanation or local level? The European Convention recognises that you need to set some threshold, because everything cannot be moved centrally. More minor matters such as insubility and allegations like that can be more than adequately addressed locally. The challenge is who takes that decision, which we are discussing here. At present, the decision rests very much with the police. We have instances in which, in my consideration, we know that the decision has been wrong and that it should have been passed on. It did not occur. However, the vast majority of complaints tend to be of the more minor nature. It is the more serious ones that need to be subject to scrutiny and effective decision as to where should that be investigated. Where does that sit and what threshold do you set? You have already talked about serious incidents. In particular, if the case involves a person serving with the police concerned about the diversions of legal opinion on whether the supplied officer is currently serving or those who were serving at the time. Is there something in the act specifically that we could look at that could title that up in any way? That comes down to the point in relation to the resignation retirement of officers as part of the process. As we said in the submission, there are varying opinions on how the legislation has been written. In particular, the contrast in the section that relates to investigations is contrasted against the section that relates to reviews, which makes it clear that any actor remission that was undertaken by an officer who was at the time of the actor remission serving with the police would be capable or subject to review. That was not followed through in relation to the investigation section. Perhaps an adaptation to adopt the same wording. I absolutely think that it needs clarity, because we have differing legal opinion as to what constitutes a person serving with the police. Some consider it a person currently serving with the police, others consider it a person who is currently serving or did serve with the police. However, there is a distinct lack of clarity and that provides us with a problem, because, at present, if an officer retires or resigns, our investigation, due to the opinion that we have received, comes to a grinding halt. I do not think that that satisfies anybody. That is helpful being cast. Can you elaborate what is the practical impact of that divergence of legal opinion? It sounds as though what you are saying is that there have been a significant number of cases—significant my word, I will ask you whether that is fair or not—but a number of cases where the legal opinion that is preferred is the one that says, at the point of resignation or retirement, that this stops. That would not be what you would prefer it to be. I think that the clarity is absolutely necessary. We have council opinion just now that says that our council's opinion's interpretation of the act is that it means a person currently serving with the police, so that is who we can investigate. We have quite a few examples where we have begun an investigation, sometimes in quite serious matters, but the person has retired or resigned, at which point we cannot take it forward. We have a current example that, without going into details, we are investigating part of the allegations, since it is quite a serious allegation, but it has then had to be passed to an English force for the retired officers, because it cannot go to Police Scotland. I do not find that a satisfactory solution to anything, so I think that there needs to be clarity of the meaning of the act. I do not disagree with that, but you say that you have council's opinion, which says one thing. Does that mean that there is another council's opinion, which says something different, or simply that your council accepts that there is an anomaly, and that is how it should be interpreted at this moment? Our council says that it means a person currently serving with the police. Different council interprets it differently. I think that the challenge is that we should not go, if I can describe it, shopping around council to get an opinion that satisfies somebody. Having sought an opinion, we need to go with that opinion, and that is why I think that there is necessary clarity needed. Following directly on from that, Ian Livingstone, when he gave evidence to us, said that if that was going to change in terms of your ability to carry on an investigation once a police officer resigns, that should apply to all police officers, regardless of seniority, so there was consistency. I was just wondering if you would agree with that specific point. That then begs the question that all misconduct complaints should be handled by the same place, whereas at the moment senior officers are your remit, whereas the junior ranks are handled internally. Do you think that that consistency is important for both those points? While dealing with our last point first, I understand and I think that there perhaps is some sense in relation to the split of the process for misconduct. Clearly senior officers cannot investigate themselves or be in charge of those who are investigating them, so it makes good sense for those officers to be subject to an independent process away from Police Scotland. Equally, I can understand why the federated ranks potentially should stay within the police structure. The other point about being able to continue an investigation regardless of resignation, and that should be consistent. Absolutely, yes. Just on the avoidance of doubt, section 33 should be extended to cover previously employed policing, by a policing body operating in Scotland since the beginning of the act. It is section 33 for those previously employed. Section 3 relates to my front. Section 33 of the 2006 act, which was amended through the 2012 act, but it needs necessary clarity. You are also concerned that the 2012 act does not distinguish between allegations of on-duty and off-duty criminality by police officers. Should the 2012 act be amended to address those difficulties? That requires any amendment. The legislation, as I said, does not distinguish the operational practice that has created the difficulty around that process. In particular, the Lord Advocate's guidelines that were enforced prior to the introduction of the act remain enforced. They relate to when there were various district procreator ffiscals and the different forces. In those guidelines, they say that off-duty criminality by police officers should be reported to the district procreator ffiscals in the same way as a member of the public. The practical effect of that is that if an officer potentially becomes involved in criminality whilst off-duty, it would naturally be the divisional CID that would take forward the investigation. Generally, what we have found—albeit, there have been some instances more recently where the process has stopped and Crown Office's direction has been sought, but generally what tends to happen is that the divisional CID progressed the investigation and subsequently, some time later, reported to Crown Office as they would a normal member of the public. That deprives Crown Office of the opportunity for pressing the stop button and determining whether an independent investigation should be sought and re-channalling it or redirecting it to me. Do you think that there should be a distinction then in terms of how there is? No, I do not think that there should be a distinction. I think that the process probably requires to be sharpened up. I think that there is a potential for the Lord Advocate's guidelines to be amended to reflect what the legislation currently says. Right, okay. Thank you. Anyone else want to comment on that? Yes, thank you. No, we totally agree with the point of the need of clarifications in terms of members of the police serving with the police currently. That could also be addressed in terms of regulation five, incorporation and assistance. There is an additional numeral that refers to ex-police officers or police officers that are not serviced with Scotland police, so it could be addressed under regulation five. The point I wanted to make is about the mandatory referrals. As probably the committee is aware, the CPT is the committee for the prevention of torture. The European one was visiting Scotland a couple of weeks ago and they raised a number of issues in their final meeting with the government in relation to excessive use of force. The entire process is confidential, but they will produce a report at the end of this month, and that report surely will be sent to you. The point that they were making is that they go through all the European countries and they examine and place the detention and the legal framework, and the point that we're making that I think is applicable here is that there is an emerging trend in European countries to refer all incidents to the police ombudsman or to the commissioner, rather than that only serious incidents. Perhaps that answers some of your questions and inquiries. That's interesting. Can I ask you, with regard to the 2013 regulations, that the party is concerned that investigators can be restricted in their enforcement powers when undertaking investigations instructed by the Crown Office? Could you maybe expand on that and on the implications of the restriction and how it could be resolved? If we look at what regulation 5 says, in essence, when it is a police-referred investigation, we can use regulation 5 to require the police to provide us with information or we can require a police officer to provide us with information, which can be in a form that we decide, so we can require a police officer to give us a statement, and that's in police-referred matters. But in the more serious matters, which are death investigations or serious crime investigations, where a police officer is a witness, not a suspect but a witness, we cannot use those powers. We have had examples where we have had death investigations where police officers have, for a considerable period of time, declined to provide an account or a statement to us. We cannot use the regulations to make that imposition on the police officer to require them. That's unsatisfactory, both from an accountability and particularly from a public perception perspective, because a person has died—I think that the public of Scotland, the Scottish Parliament and so on—to expect that a police officer who is a witness to the events would give an account of what they saw or what they did. We do not have those powers just now. I think that it's an anomaly within the regulations where there were minor matter, we can use the powers, but in the more serious matters we do not have powers. It's where police officers are witnesses, not where their suspects are refused. Can I ask you to hypothesise why the police wouldn't want to give you that information as a witness? I think that that would be a matter for the police to address. I understand that, in certain circumstances, they have received advice in individual cases. Legal advice? Police federation advice, and legal advice in certain circumstances. You can't do anything about that, obviously, that the way things are. There's nothing you can do to compel that. It's very strange because section 33 sets out my functions 33ab deals with the Crown Office and Lord Advocate directed matters. C and D, as John has said, relate to the matters that can be referred by the chief constable and D to a public interest investigation. The regulations, for some strange reason, have focused on C and D and omitted B. I want to pick up on the specific issue of whistleblowing. We've covered a lot of the territory in terms of the investigation, but there are concerns about the lack of independent scrutiny of whistleblowing. I suppose that, thinking back to the response that you gave to Daniel Johnson's question about where there may be instances justifying a different treatment of allegations, for example, against senior officers, as compared to other officers. Similarly, I suppose, in whistleblowing instances, there may be appropriate for the whistleblowing to take place to senior officers within Police Scotland rather than external to Police Scotland. I'd be interested to know the position of work in relation to how you believe whistleblowing as a whole should be dealt with and if there should be any differential treatment applied. I'm aware that Police Scotland operates their internal system integrity matters and I understand that there has been evidence given in relation to that, where staff can anonymously report wrongdoing to the police. That system doesn't provide any external confidential reporting system or mechanism. I know that, from discussions with Police Scotland, they are currently exploring the use of an external charity as someone who can receive the whistleblowing allegations. However, when I posed the question what happens to those allegations, the response was that they would be re-diverted back into Police Scotland. I'm aware from my colleague down south at the IOPC following a UK Government consultation a couple of years ago. They've introduced new discretionary powers for the IOPC to investigate whistleblowing concerns and that provides a significant and alternative reporting route for whistleblowers to go directly to the IOPC. The IOPC empowers the IOPC to act in its own initiative without deferring to the police at all. The IOPC is further empowered to ensure that the identity of whistleblowers is protected and has a power to restrict information provided to the police force when it determines that it's going to investigate a whistleblowing report. The committee or the Scottish Parliament may wish to consider providing similar powers to the pack. To see that distinct from the triage option that was being discussed earlier as more a question of having two potential options, the whistleblower being able to choose which of those was most appropriate and they felt most comfortable with, is that right? Potentially, yes. Mr Kerroth, are there human rights implications to the way in which whistleblowing procedures are managed at the present time that you'd want to flag up? I'm not very familiar with whistleblowing legislation but my understanding is that which I should always say is a UK legislation that the legislation provides for external mechanisms so that there is no confidence in the internal mechanisms that whistleblower can go directly to external parties, as I mentioned, even to reporters or to MSPs or members of the Parliament. What Ms Williams just described in terms of an option of going to a charity who would then subsequently provide the information back into the police? That would not be consistent in terms of your understanding. With an adequate account of the framework, I would say no. In terms of the discussions that have been taken place with Police Scotland that you've had commission on, does there appear to be a willingness to explore a more robust mechanism, whether it be one that reflects the model that seems to have been adopted south of the border or is there a degree of resistance to that? If so, is there an explanation of that resistance? From the discussions that I've had, there does appear to be a clear resistance to that with limited justification. It would appear to put forward. I wonder if I could refer you to an additional submission that we've got from Unison Police Staff Scotland. They weren't able to be represented from the police staff angle, and it was specifically on the whistleblowing where they felt that positive changes to whistleblowing guidance, which offer greater protection to those raising concerns, have been very slow to materialise. You've mentioned what happens in England. They favoured the expansion of independent scrutiny bodies to hear employee complaints as they don't think there's the right balance just now. There is a legislative change. They also referred to the positive work underpinned with permanent structures and guaranteed commitment towards implementing the recommendations of Jim Mathers working together to review progressive workplace policies in Scotland. Are you familiar with that? Is that something that would aid whistleblowing operating as we'd all like to see? I'm not familiar with that particular piece of work. I do know, however, from speaking, as I said, to the IOPC and other police oversight bodies that they receive whistleblowing directly into those organisations. I've got two concerns in this space. First of all, it's about the complexity for police officers raising complaints. It's right that we have proper whistleblowing channels. However, as it stands, we've got grievances that police officers can raise, professional standards, and my experience from case work that I have is that sometimes issues can bounce between different channels, different databases, and really before the substance is looked at. Is there a need to clarify that? In particular, thinking about whistleblowing and the associated point is that it's important that whistleblowing is treated the right way, regardless of whether or not the person coming forward is reporting as a whistleblower to the correct person. I think that it is important that they are treated seriously and that they are treated appropriately. The point that you make in relation to grievances is interesting, because, again, at the IOPC, the conditions of service or where matters are already under investigation by a different route are not taken on as part of the whistleblowing process. Do you think that they should be? I think that it's difficult in relation to terms and conditions, because it's almost stepping outside the accepted framework. Just on that point about treating it appropriately, do you think that there should be protocols in place for senior officers in terms of how they handle whistleblowing? Would you be concerned if a senior officer shared information with the subject of a report of whistleblowing? Absolutely. Can I perhaps ask you, Mr Keros, to notice in your submission that you are concerned about the 2013 regulations that afford the chief constable or the SPA the discretion as to whether or not to refer incidents of baton use specifically by the police to the perk for independent review? Could you expand on that specification? Yes, convener. This is what I was referring to some minutes ago in relation to regulations six and seven. So regulations seven covers batons as weapons. What I was trying to say is that those incidents are excluded from mandatory referral, but even if the incidents could be what we consider minor and we talk about the threshold, they might in certain circumstances there certainly will trigger article three requirements of procedural investigation. So the point is that it is not up to the chief constable or the police authority to refer those circumstances, but it has to be because there is a legal requirement to do so. Thanks, convener. I wonder if the panel will particularly probably, Diego, could elaborate on how the 2012 act could be improved in regards to human rights being articulated as part of that? Thank you very much. There is a number of outstanding recommendations that we made in 2012 as you are aware and actually we welcome the significant steps that the committee and the parliament took to embed human rights, but of course there is a number of ones that still are relevant today. Particularly if you consider the challenges of police Scotland lately and we can mention stop and search, deployment of tasers and firearms, the use of cyber kiosk and the use of biometrics just to mention a few. All of these have a central human rights angle. So human rights are not only important in terms of policing compliance with human rights legislation, which article 6, section 6 of the Human Rights Act, but also is to ensure that legislation drives best practice in Scotland. So there are two ways to see that. There is structural issues that remain outstanding and there are specific provisions in terms of the structural issues and how to improve the current framework. There are three in particular that without going far away happened in Northern Ireland, the police service in Northern Ireland, which we consider has one of the best models of embedding human rights into the process and legislation. So one is the creation of independent human rights advisor for the force. The second is the introduction of mechanisms to protect and to promote transparency and democratic accountability within local communities and the third is training for all new and existing officers, police officers and within the police escotland in human rights, of course. And we are missing most of these mechanisms in Scotland. Now in terms of the act, human rights can be more explicit in general and through the act and I mentioned some of the provisions in relation to PERC that omits article 2, 3 and 8 requirements, but also in sections 32, 33 of the act they could be enhanced but including some of the human rights provisions. Chapter 16 as well we welcome the explicit reference to OPCAD. I think this is both unique and progressive for the Parliament and actually the UK Parliament is trying to copy something similar to what you did in 2012 and the committee might want to consider extending the OPCAD provisions in the act to inspection of custody by HMICS and I'm quite aware that the HMIC has already raised this with you and HMICS is a member of the UK NPM and helps to deliver OPCAD obligation in Scotland so it makes practical and legal sense to reflect this reality into the inspection of police custody as conducted by HMICS. Section 94 in the chapter 16 can also be enhanced but in order to meet the objectives of OPCAD and be human rights compliant. So there is a number of provisions that if you want me to go through them I could be enhanced through human rights lens. Thanks very much for a very full answer but can I ask you specifically about the code of ethics for policing to know that you've noted that there is a code of ethics for policing but no provision in 2012 act but you believe that it should be on a statutory fund, can you expand on that? That's correct, thank you for mentioning that which I forgot to say. There is a code of ethics in which I think if I am correct the act does not make provision for the code of ethics but there is anyway a code of ethics for policing in Scotland and we welcome that it has a explicit reference to human rights and the way how police officers obligations operate under the Human Rights Act but we think that the act could and should be placed on a statutory footing as is the case in Northern Ireland as Raffer is one of the best models that we could have and for instance the police ombudsman uses the code of ethics to classify complaints made against the police and it's important that the police service the police authority and the commissioner and share a common and ethical base and that is evident in every aspect of policing so the code of ethics will provide a common framework and a valuable tool to ensure that the police service complies with Human Rights Act and so that's why we consider that it should be in a statutory footing and that this parliament and this committee will have a say on the content of that document that code of ethics and it will be reviewed regularly so that will match the character that I mentioned of human rights as a living instrument but it will also give more legal precision to the operational aspect of policing. Another question around custody visiting but I think that was referred to in Diego's initial answer so I just wanted to sort of finalise by saying put mother hat on as a quality in human rights committee member as well it's great to have this as part of the scrutiny so credit to the clerks and hopefully yourself Diego or other folk from the Scottish human rights committee will be regular attendees at future scrutiny. I want to Mr Keros if there's anything else that you haven't mentioned in terms of the 2013 regulations that you think we should be aware of and that you think should be amended? Just to reiterate that human rights has added value to this and the member mentioned that and I'm grateful for that and the example that I gave you is the failure to add article two and three but also the failure to to consider those requirements so there's nothing about victim participation so there's something that it could be added there is nothing about open to public scrutiny that's something that could be added and probably the other point and the commissioner could correct me if I'm wrong is the power of Perg to assess and evaluate and report on systemic issues which is absent also in the regulations and that's something that other commissioners and again referring to Northern Ireland have the power to report on systemic issues and they have found this very helpful in those jurisdictions. Give an example. Yeah so there is another jurisdiction that the the the pair has a specific power to conduct more general reviews of police practices and policies so they analyze anything in relation to what are those police practices and operational issues from a human rights angle and so they monitor the incidents and the practices in relation to specific human rights obligations and they report on those obligations and if they find a systemic issue a systemic failure they report as well on that so no exclusively or not only on incidents but in systemic failures that they find within the police practices and policies. Would there be any comment you'd like to make? Yes I'd pick up on that. I would endorse the thinking behind that in Scotland HMICS would generally take forward thematic reviews pulling out systemic issues and we have close consultation with HMICS in relation to matters that emerge from any number of our reports so would you be satisfied that your powers are good enough at present in that regard you wouldn't be looking for anything further quite happy with the the liaison with HMICS? Yes there's adequate liaison with HMICS. Liam Kerr supplementary. Thank you convener. Mr Kerr, the SHRC made various recommendations both before the 2012 act and around the regulation of investigations in times past. Looking at your evidence the many of these weren't taken forward do you recollect or can you enlighten the committee as to why they weren't taken forward what the thought process of the legislature was at that time and what has changed? I'm afraid I won't be able to to give you a specific reason why they were not taken forward so some of them were taken forward and we normally interact with the parliament as you know and both in a written and in an oral way so we provide our recommendations to the parliament and doing a stage one and we try to follow through stage two but the underlying circumstances so the rational why they were not taken forward I'm afraid that I will not be able to to comment on that but yes I don't know if you were expressing some concern but I share your concern if that's what you're expressing because the evidence that we have now is that those recommendations were relevant and they are still relevant today. I'd just like to ask you about some of the evidence you've given in writing regarding the independence of the SPA and the minister's Scottish minister's relationship to both the SPA and the police. I mean you've said that first of all that the SPA should have the independence of the SPA to set its own strategic priorities but moreover that the ability for ministers to direct the police should be limited. Could you maybe just elaborate on that and are there any sort of specific examples where you believe that the actions of ministers have undermined human rights because of the use of the powers as they stand at the moment? Yes, thank you very much. Section 33 of the act provides that the Scottish minister might determine the strategic police authorities and police priorities for the SPA. For the more section five also provide the SPA must comply with any specific or general direction given by a Scottish minister. This could be understandable in terms of harmonisation of national outcomes for instance but there is also disadvantages to this approach. From these two provisions we could say that the Scottish minister have a comprehensive power to direct SPA and the examples there are no specific examples in terms that they have happened or that I am aware that they happened but it could be in relation about number of deployment of staff or it could be about the style of policing. So the commission believes that the power given to the Scottish minister in the act represents a significant challenge to the independent of SPA and the integrity of the police accountability framework. So in the commission view as you mentioned is our view that the Scottish minister should only retain the power to set principles and overall objectives for policing and the SPA should have the independence and power to set his own strategic priorities. So one suggestion that has been made in this space is that there should be formal protocols regarding the communication between ministers and the police themselves and also the SPA. Is that something that you think that would be welcome and might help clarify this relationship and ensure that overt direction by ministers could be limited? Yes, I think that will add some of the issues that will cure some of the disadvantage of the model adopted by the act. Likewise, the appointment of SPA board members and the SPA chair themselves—the SPA chair is obviously a ministerial appointment—is that something that you were saying should be changed in the appointment that the chair should reside elsewhere? If so, where? We are saying that there is greater accountability models to deal with that. So in the past, the election local authorities were highly involved in that election and in that process of election, so if we have a wider engagement, it will solve some of those issues that arise today about the direction of an influence from the Scottish ministers to the SPA. Just one final point. I believe that it is of fundamental importance to enshrine the principle of policing by consent right the way through the governance structures of the police. At the moment, because of the way that the SPA is appointed and those lines of accountability, it is unclear to me precisely where the policing by consent sits. Do you think that that is something that could be focused on and improved in terms of how the SPA functions to ensure that the policies that it is setting, the priorities that it is setting, are in line with what the public consent in terms of how they wish to be policed? Absolutely. I think having a price-based approach is in line with that idea of policing by consent, which is incredibly progressive, even if it is incredibly old as well. The idea of policing by consent is that not everyone will agree with the police, but that policing is open, transparent and mutually reinforced. It is founded on human rights and what the police do is to protect our fundamental rights. There should be an alignment of those ideas and that could be enhanced. Perhaps again I refer you to the unison supplementary submission that we have got from the Police Staff Scotland, where they say that the role of ministers in shaping our national police service needs to have greater clarity and more openness about ministerial decision making and how decisions are arrived at and applied and accounted for. They suggest that they should be by way of records and minutes being taken and openly available. Would that be something that you think would be a way to go to try to get transparency and openness? Part of the challenge is that that is very much a decision for yourself and the Scottish Parliament as to—I mean, I'm probably straying into an area that is your domain, which is Parliament, Government needs to set strategic directions and provide that strategic direction for the police force. They need to set some boundaries, some objectives for where it wants to take the Scottish Police Service, and that's quite right. How open do you want that to be, how transparent do you want that to be, again, as a very much matter for the Scottish Parliament? Sometimes there does need to be those initial conversations as to shaping where things go, but there needs to be a degree of openness and transparency there. I do very much think that it's a matter back to yourself. Perhaps more human rights. If we haven't got to the bottom of how a decision was made, then if it affects a complaint against someone, then you would expect minutes and a record of the decision to be available so that there is accountability. Can I go a little bit further on this submission? It's been very difficult to deduce where ministerial advice and guidance start and instruction direction and intervention end. In their view, that impacts on the credibility of the single force in appearing free from political interference as a legitimate entity. They are looking at greater transparency and proof standards on the support of, for example, the adoption of a lobbying register. They are looking at what happens in the ministerial and technical direction reporting of the process between the UK Government departments and the national audit office. I suppose that they are saying that an analogous body in Scotland would be Audit Scotland to provide better scrutiny on the governance and role of ministers and reveal their value and direction. I suppose that there is a human rights aspect here for transparency and openness in dealing with anyone's particular issue. Absolutely. I concur with your point. I think that in areas policing, there should be, of course, there should be a balance between the public interest and the provision of crime, but as much openness and transparency as is possible is always welcome. That's why we have recommended to the police in particular to have a human rights-based approach to policing, which involves four areas in particular. That is policy and strategic decision making, operational planning and deployment, training and guidance, and investigation monitoring and scrutiny, which is the area that we are focusing on today. A rights-based approach is about having this quite abstract idea embedded in those specific areas. It is looking at everything from policing to training, deployment and investigation through a human rights lens. If I could, I will finally ask you. You mentioned the article on regulation 5 that needed to be amended for the COPFS-directed investigations. You also suggested that there should be defined timescales that are required for the information to be provided. Would that be the case? Can I ask you, therefore, when we were looking at the investigation of complaints against senior officers, if you think that they should be prioritised given the length of time it appears to have taken to deal with these? I agree that all investigations should be undertaken as quickly as possible, and we do our level best to achieve that. However, there have been a number of issues that have impacted on our ability to deliver on that. When an investigation comes into us, we assess its nature and complexity and then we allocate it as a category A, a category B or a category C investigation. Category A is the most serious, and I can confirm that each of the recent significant investigations that we have undertaken have been categorised as category A investigations. Last year, there were particular features around some of those investigations, and certainly we were drip-fed a number over a concentrated six-month period. Throughout that period, we were also dealing with a number of other competing investigations, some of which involved potential criminality against police officers or about police officers, some involving deaths, following police contact. However, almost on a daily basis, there was some progression of the significant investigations, and we did prioritise those, but we had to juggle the priorities. I know that Mr Metsforum probably wants to elaborate on that, because he had the first-hand sharp experience of it. I think that the challenge from my perspective leading investigations is to what priority do I attach to, for example, a senior officer misconduct investigation versus a death investigation or a serious injury investigation. As head of investigations, my priority is always providing a service to the relatives of the deceased, so my focus and priority will always be death investigations. That is entirely right. Thereafter, I have to balance the demand on my investigations department. Last year, we had a significant increase in the volume and the severity of the number of investigations that we were expected to undertake, and I had limited resources, so I had to balance those resources across those competing priorities. That means that the investigations that are of a lesser priority will take longer, because I simply do not have enough resources. However, the Scottish Government recognised that we were severely strained, and at the start of this year, the increase in the money allocated to PUC allowed me to expand the number of investigators that it had. Consequently, if the same demand was presented as we got last year, if that hit us now, am I better placed to deal with it? Absolutely, because I have more resources now. However, when you had limited resources, it is balancing whether you put those resources against the importance of the investigations and to be quite blunt, employment or a contractual thing versus a death investigation, my priority is the death investigation. In general terms, that sounds very sensible, when it involves the chief constable of the force, then there is a paralysis that descends on the whole police force. It has a disproportionate effect. In those circumstances, laying aside the resources, which I think to an extent your suggestion has been addressed given the increased volume, would it not now with the benefit of hindsight be best to deal with even a minor complaint against the chief constable as a matter of priority so that the police force can get on to function and we can sort out what is a substantive complaint and what is something that is not causing particular concern? Absolutely, I agree with you on that point. I think that the challenge was, in the specific one that you mentioned, it is the nature of how that arrived with Perc, because from the point that it was initially received by the SPA, it then took 10 weeks to arrive with us. We acted on it immediately, but that was the first complaint involving a series of allegations. Several weeks later, a second complaint arrives with further allegations. Over the course of the next six to seven months, further complaints and further allegations are made. Some people think that this all arrived as one investigation. It was spaced out over a prolonged period of time, requiring us to go back and interview the same people. If it had been a single allegation and could be dealt with quickly, yes, absolutely, I would agree with you. We would prioritise that due to what you flagged up as the reputational risk and the damage. In that particular instance, that occurred over a prolonged period of time, so it was not practical to adopt that approach. Can I tease that out a little? There was a 10-week delay in receiving the complaint from the SPA, was that right? Yes. Should there be a time frame? Should there be something on that? Is there any way to address that issue? That, in itself, I think, is concerning. I think that that should be directed towards the SPA. Is there a danger here that a complaint is lodged? Okay, we could deal with that, but another complaint is lodged and another complaint. Those could be vexatious complaints. Meanwhile, the clock is ticking. The reputational damage is being done the longer it takes. How do we address that issue? Is that a concern for you? How would you suggest that that could be resolved so that it is not a case of, if we just pile on enough complaints then? It is part of the assessment process by the SPA where they examine the matter. I know that they had counsel opinion and I heard the evidence that they gave here where, in essence, when they get it, they send it onwards to Perk. We have examples in some of the more recent ones where, if there had been an assessment process undertaken—I will use a specific example without going into too much detail—where it was a matter of the employment contract of the person concerned. That was sent to us for investigation. We begin to investigate it and then we determine that it is actually a contractual matter and the SPA had the answer all the time. Therefore, there was no need for that matter to be referred to in the first instance. I think that a more effective assessment and analysis when it first arrives can then determine and that would potentially address the issue of the vexatious matters, where what is getting passed on is something that is considered a matter of serious misconduct, as opposed to contract or whatever else. That could be built in retrospect more dialogue. You have been in post since the inception of the new act. Can you point to maybe improvements on how things worked in the past and where we are now with both how SPA and Police Scotland conduct complaints? I suppose that you flag up the things that you absolutely would want to be addressed by the committee in our post-legislative scrutiny. I think that it is fair to say that initially there was considerable resistance to Perk as an organisation and in relation to referring matters to us. That has improved over the period where despite all that has been said here today, we are seeing a greater number of referrals from Police Scotland, particularly in relation to serious injuries. However, there is that nagging concern that still there is a bulk that we are not seeing and that only comes to us through the route of the complainers coming through the review process. As regards the SPA, I think that the difficulties that organisation has seen are well documented. I do not want to offer any further comment on that. However, unison referred to a variety of different forums, wellbeing and surgeries. Things have moved on a little bit. Are you seeing improvements? In relation to SPA, you will be aware last year that we undertook an audit that threw up a number of features that I am aware of. SPA is now beginning to address and deal with. I am hopeful that those improvements will shine through shortly. Would that require legislative change, some of the improvements, if we go back to the legislation and see how we can make sure that it is there, regardless of who is in post? I think that that has led to do with the SPA. In relation to legislative changes, we have talked already about the officers serving with Police Scotland. I think that there would be the potential for a legislative change around that. In relation to the regulations, we were looking for the strengthening of the current regulation 5 so that that attaches as well to crown directed matters. We spoke in relation to the human rights aspect. I suggest at the beginning of the session that section 41b and 33 relates to serious incidents. Mr Kerr said what has changed, what has moved on. The threshold of human rights cases in relation to severity points to a lesser level of injury or infringement of article 2, so whist when the act was initially formulated it specified serious incident. There is now a case law to the effect even that a single slap to someone who is in the process of being detained would infringe their article 3 rights. It may be, as I said earlier, that it would be appropriate for serious incidents to be replaced with the potential inference of a breach of article 2 or 3. That is helpful. Finally, Mr Kerr, in relation to human rights, is there anything that we have not covered that you would like to see in the act? No, I think that we go over everything that we have. Thank you very much. I take your point about the 2000 act stating that the SPM must try to carry out its functions in the way that is proportionate and that it should be required to re-take that on board. That concludes our question time. Thank you all very much for attending today. That has been an illuminating evidence session. We now suspend to allow the witnesses to leave. Agenda item 3 is consideration of the prisons and young offenders institutions Scotland amendment rules 2018, SSI 2018, oblique 293. I refer members to pay for 3, which is a note by the clerk. The members have any comments that they wish to make regarding the SSI. If there are no comments, the committee agreed that it does not wish to make any recommendations in relation to this instrument. Agree, thank you. The next agenda item is consideration of the reports from HIMCS and HM IPS on home detention curfews and the response so far from the Scottish Government in the form of the ministerial statement. I refer members to pay for 4, which is a note by the clerks. Just before I ask members for their views on reports, I wanted to put on record the condolences of the committee to the McClelland family. I also want to note that the committee paused its consideration of the management of offenders bill to await the publication of those two independent reports. We will shortly consider how we wish to proceed. In the meantime, I invite members to comment on the issues raised in the two independent reports and response from the cabinet secretary in the chamber. I think that we are agreed that there are a number of issues raised in those two reports. It would be our intention to cover those issues and how that will affect our work in private session. Liam McArthur. I thank you for extending the condolences of the committee, which is entirely appropriate. It strikes me that there is a good deal of substance to both reports, not necessarily a great deal of it that points in the direction of legislative changes, but nevertheless it is policy changes and practice changes that absolutely, as a committee, we will need to make sure that we keep an eye on over the months ahead. Where there are proposed changes referred to by the justice secretary, there is time now to factor those into our consideration of the legislation. My preference would probably be to do that ahead of stage 1, to take evidence, rather than stage 2, where we can find ourselves running out of time. It was absolutely right for us to stall the process, and that has been justified by the detail of the reports. Thank you for that comment. Liam McArthur's comments are simply to associate myself with Liam McArthur's. I think that that is exactly right. Yes, we were very mindful of the sensitivities around that. I agree with everything that all my colleagues have said, because I think that it was right that we stopped it to get this information, and how we deal with the situation now between the recommendations that have been made by the reports and the fact that the cabinet secretary has gone in the record and said that he will accept all the recommendations. We have got an opportunity within the legislation to try to make some of those changes. I think that we should take the evidence stage 1 of the authors of the report and then possibly when we go on to stage 2 to look at how we can do that. I think that members of the public and the criminal family can be assured that we will give and make sure that the stage 1 report is the very best that it possibly can be in light of the two reviews and the ministerial segment. If you are content with that, that includes the public part of today's meeting. Our next meeting will be on 13 November when we will continue with our post-legislative scrutiny of the Police and Fire Reform Scotland Act 2012, and we now move into private session.