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Amendments 60 and 61 are connected. They seek to do something very similar but in different ways. I am keen to hear the cabinet secretary’s response to why I think that they are necessary and to hear whether, if the amendments are not practical, there might be a way of achieving at a later stage a practical agreement on the issue that they address.

Amendment 60 has come about via representation from HMICS, which has already influenced some of today’s proceedings. The amendment seeks to create an offence whereby an officer or member of police staff can face a charge of committing misconduct in public office. That would bring Scotland into line with the rest of the United Kingdom; in other parts of the UK, officers can face the charge of committing misconduct in public office if they abuse their position, but that offence does not exist in legislation in Scotland.

Some examples have been cited of officers committing wrongdoing in England and Wales, one of which involved taking photographs of a murder victim and sharing them on WhatsApp groups. As it stands, it seems that legislation in Scotland would not allow for criminal prosecution for misconduct in public office in that example. Amendment 60 would plug a gap and bring consistency.

Amendment 61 is a gentler way of getting to that point. Instead of legislating for the offence, my amendment 61 would require ministers to publish a report on police misconduct in public office

“no later than one year after the date of Royal Assent”.

The Parliament’s legislation team were kind enough to advise me of amendment 60’s potential legal difficulties and to suggest that amendment 61 might be a way in which the statutory offence could be introduced, after ministers have given consideration to introducing it and outlined the steps that they might take.

In an ideal world, amendment 60 would be the way to introduce an offence of misconduct in public office. However, amendment 61 might be a way for the Government at least to go away for a year after the legislation has been passed and consider whether the measure ought to be brought into play.

I move amendment 60.

The cabinet secretary made an appeal for common sense, which is good news, because I am big on common sense. I heard everything that she had to say. I was not aware that there is an offence of wilful neglect of duty by a public official in Scotland that is in some ways comparable.

In the spirit of common sense, therefore, I am minded not to press amendment 60 and not to move amendment 61. I would be interested to hear what HMICS might have to say about what we have put in the amendments and how the cabinet secretary has responded. That might give us scope to look at the issue again at stage 3.

Amendment 60 is clearly wholly impractical. Amendment 61 has its own issues, but at least it is food for thought and it gives us something to consider. The last thing that I want to do is create a two-tier process in which police officers are being held to a particular standard that we as politicians are not, so I will not be pressing the amendments.

Amendment 60, by agreement, withdrawn.

Amendment 61 not moved.

I share the cabinet secretary’s view about the importance of body-worn cameras. It is worth repeating that Police Scotland, which is the second-largest force in the UK, is the only police force in the UK not to have them. Every one of the 40-plus other police forces has not only had them for many years but is on to second and, in some cases, third-generation technology. There has been a complete failing, in my view.

I agree that there will be a fundamental role for Police Scotland, the SPA and, indeed, HMICS in assessing body-worn cameras, as and when they are in use. On the basis of the reasons that have been given, I seek to withdraw amendment 62.

Amendment 62, by agreement, withdrawn.

Sections 9 and 10 agreed to.

Section 11—Complaint handling reviews

In respect of whistleblowers, we have heard evidence from a lawyer who acts for a number of police officers, who says that, even now, with whistleblowing legislation being well established, in cases that she acts in, whistleblowers are not being treated as such and are not being given that protection. The legislation does address whistleblowers and helps to improve their rights, but there is a potential for the amendments to work against that or to change the whole dynamic.

I do not know whether the cabinet secretary does not want to press pause on a point of principle or whether there is some practical reason, but it seems entirely sensible to do so, given that we have had the amendments only for a week and we do not really know what they will do. There are genuine concerns, and there is the likelihood of cross-party consensus if we could just hold off for a short while. I again urge the cabinet secretary to reconsider.

I have dealt with cases in the past where there was sufficient evidence and a civil standard of proof of wrongdoing. I will give you an example. There was one police officer who was suspected of taking part in armed robberies with known criminals, going into the homes of elderly people, targeting them, tying them up, robbing them, and using police radios and fake police warrants. It was an extraordinary set of circumstances. That individual was charged with a criminal offence, and it went to the Crown, but nothing came of it.

The suspicion among some of the victims was that the embarrassment of what had transpired—that a serving officer could do that with police apparatus—was a factor in it not proceeding to court and in not having anyone criminally convicted.

Eventually, and ultimately, after many years of that officer being in receipt of full pay, he was finally dismissed on the basis of the evidence, under the civil standard of proof, being more than sufficient to rightly say that he could no longer be a police officer.

That is an extreme case, but, if a police officer did something in the workplace or related to their conduct at work that was black-and-white wrong, and that would result in dismissal in any other workplace, that should be allowed to happen. I do not think that it would pre-empt or prejudice any criminal proceedings, which would be wholly separate, so I think that it would still be the right thing to do.

I have a funny feeling that the cabinet secretary is going to agree with you.

Thank you very much. There is no cake, I see, but that is fine. [Laughter.]

I have learned a lot in this committee over the past three and a half years, and I am extremely grateful for the opportunity to work with you all. It just shows that we can forget party allegiances sometimes and work for the common good.

I cannot thank the committee without thanking the clerks, who, as we all know, run the show. Thank you very much.

I apologise for that procedural hiccup.

I heard what the cabinet secretary said about the lack of discretion in respect of the Crown Office. However, there have been approximately 350 deaths in prisons in Scotland over the past decade and in none of those cases were the families’ views a factor in whether there should be a fatal accident inquiry, because it is a statutory requirement.

Furthermore, in respect of the line of argument that the cabinet secretary put forward about the airing of sensitive information, my understanding is that a sheriff who presides over a fatal accident inquiry has mechanisms to put in place reporting restrictions in respect of any information that is deemed to be sensitive, so that it is not put in the public domain.

I understand the problem with amendment 41, because it does not differentiate between a tragic officer suicide, when misconduct has absolutely not been a factor, and cases in which misconduct might well have been a factor. It is a bit of a blunt instrument.

I wonder whether there might be a way of working with the Government to lodge an amendment whereby, if the Crown’s initial investigation of the circumstances found that there was the possibility of police misconduct, or if regulation issues were perhaps a factor in the death, that would trigger the requirement for a fatal accident inquiry. There has been a failure of the SPA and Police Scotland to look properly at the circumstances of deaths that we know about. That would be a way of plugging that gap and righting that wrong.

I understand the problem with amendment 65, because it talks about a mandatory FAI for all deaths and does not differentiate deaths in which misconduct issues might have been a contributing factor. I would be happy not to move my amendment if my concerns could be addressed through a change to either amendment 65 or amendment 41 and an acceptable version of what I have proposed could be found that would seek to respectfully and sensitively address what I believe is a big gap in the current system. I am keen to hear the cabinet secretary’s position.

One thing that I did not say, which the federation told me this morning, is that it supports legislation that ensures the integrity of its workforce. That is in its interests and in everybody’s interests, but the legislation has to be fair. The amendments bring about a whole new ability for the chief constable to use vetting to arbitrarily dismiss officers who are deemed not to have passed that vetting, but it is only by way of regulation after the event that that will be properly defined.

Given that we have had three to four months of taking evidence on the bill and discussing it, this is extremely last minute. No interested party—not least the Scottish Police Federation or the Association of Scottish Police Superintendents—has had an opportunity to contribute to this part of the legislation, which has been introduced by way of amendments that were lodged only a week ago by the Scottish Government. It is sensible that we press pause.

We might all fundamentally agree that vetting needs to be improved and that there needs to be a mechanism whereby, if something arose through vetting, the police should have the ability to dismiss someone, but it all seems a bit slapdash and slightly irresponsible to do so on the basis of amendments that are a week old and which none of us have had any meaningful way of looking into.

I am extremely concerned about these amendments. The bill was published on 6 June, and here we are, 12 weeks later, considering a load of amendments from the Scottish Government that fundamentally broaden the scope of the legislation.

These amendments were published only a week ago today, and the proposed changes are so broad that they have required the Government to change the introductory text of the bill. Based on the evidence that we have heard, these are not small, tinkering amendments.

This morning, I spoke with David Kennedy, the general secretary of the Scottish Police Federation, and he shares our concerns. He described the amendments as “deeply concerning and frankly dangerous”, and he believes that they

“risk the creation of a fundamentally unfair system”.

The amendments would allow the chief constable to dismiss an officer for failing vetting. On the face of it, that might sound reasonable, but there appears to be no definition of what that vetting would look like; that would be decided only by way of regulation after the legislation is passed.

The committee has not taken any evidence on these amendments, and there has been no consultation with any witnesses, including from the SPF. I know that the cabinet secretary said that the SPF would be consulted after the event, but there is no real requirement for its position to be heard. If we accepted the amendments, we would, therefore, in effect be giving the Government carte blanche to come up with a system that could be fundamentally unfair.

The SPF’s other concern, which I share, is that vetting regulations that could lead to whistleblowers being targeted could be introduced by way of these amendments. Police officers, as whistleblowers, could have legitimate points to raise, and a decision could be taken to weaponise the regulations against them. I have seen that happen in the past with police officers, some of whom have given evidence to this committee. They had done nothing wrong, but having attempted to draw attention to wrongdoing, they felt the full force of the police regulations being used against them.

I urge the cabinet secretary, therefore, to press pause on these amendments today, and to give the committee and interested parties, including the SPF, time to submit a formal response to them. That would be sensible and reasonable, given that we have had just a week in which to consider them.

If the cabinet secretary insists on pressing or moving the amendments today, I would urge all committee members to vote against them at this stage. That would allow us to revisit the proposals at stage 3 in a measured and sensible way.