The Act – Section by Section Ethics of the police Section 2: Code of ethics
18.Section 2 of the Act establishes a statutory code of ethics for Police Scotland (recommendation 1 of the Angiolini Review). References in this discussion to “the Code” are to the new statutory code. As explained above at paragraph 17, there has historically been a code of ethics for policing in Scotland, which has existed entirely outside of the statutory framework. Whilst it is envisaged that the Code will build on the existing non-statutory code in terms of its content and the role that it plays, that is not required by the provision.
19.The Code will not have any particular legal effect. A failure to comply with the Code will not of itself give rise to grounds for any legal action. Neither will a breach necessarily constitute misconduct, which will continue to be measured by the standards of professional behaviour alone.
20.The Code is established by inserting a new chapter, chapter 4A, into the 2012 Act, consisting of two sections, 36A and 36B, and a schedule 2ZA. Section 36A is concerned with the substance of the Code and the duties around it, while section 36B is concerned with the procedural aspects of the preparation and revision of the Code.
21.Inserted section 36A(1) requires the chief constable to prepare a code as soon as reasonably practicable. Subsection (2) provides that the Code sets out the Police’s values and the expectation of its constables and staff. Subsection (4) requires the chief constable to have regard to certain sources of police ethics when preparing the Code. This guides the chief constable as to the content and purpose of the Code and also makes clear that the Code stands alongside and builds on the standards of behaviour etc. The first two of the sources (the policing principles and standards of behaviour) are elements of the existing statutory regime and the requirement to have regard to them ensures that the Code is woven into the existing legal context in a cohesive way. The third is a code of ethics emanating from the Council of Europe. The fourth and fifth are sources of international standards in police ethics emanating from the UN. The sixth and seventh are rights which have been incorporated into Scottish law and the eighth source is rights that are contained in instruments which do not form part of domestic law but which the chief constable nonetheless considers to be relevant. The purpose is to ensure that the Code upholds and promotes human rights and international ethical standards and that policing practice is encouraged to also.
22.The chief constable must involve the SPA in the preparation of the Code and the SPA must provide the chief constable with such assistance as the chief constable may reasonably require in that regard (section 36A(3)). This is a model of collaboration which already exists between the two elsewhere under the 2012 Act (see section 34(4) in respect of the strategic police plan for example).
23.Once prepared, section 36A(5) provides that the chief constable must maintain the practice of making the Code freely available to the public on Police Scotland’s website and must also lodge a copy with the Scottish Parliament so it can be brought to the attention of MSPs. The chief constable may also publish the Code in any other way the chief constable sees fit. Finally, in order to try to ensure that every constable and member of police staff is familiar with the Code’s contents, the chief constable must take all necessary steps to ensure they have done so and a record must be kept of the steps.
24.Inserted section 36B requires the chief constable to consult on the draft code with certain people and organisations. The list is set out in a schedule, which can be changed by regulations made by the Scottish Ministers. Those regulations are subject to the affirmative procedure(4), by virtue of the amendment to section 125 of the 2012 Act made by section 2(5) of the Act. The list is designed to include those with relevant knowledge or expertise, including staff networks that represent particular minority groups and representatives of those who have complained against the Police etc. to seek to ensure that regard is had to their perspectives. The chief constable may review the Code and must do so at least every five years, or if either the policing principles or the standards of behaviour (to which the code must have regard) changes substantially. This is to ensure that the Code keeps step with the other elements of the ethical context. Following such a review, the chief constable must either revise the Code or lay a statement before the Scottish Parliament as to why the Code does not need to be revised. If the chief constable does decide to revise the Code, the chief constable must consult and share a draft of the revised Code with the same listed persons as when preparing the first Code. A copy of the revised Code must be laid, alongside a statement which summarises representations made during consultation and, where any representation has not resulted in a revision, gives reasons for that.
25.Because section 2 of the Act places on the chief constable a new duty or responsibility, it also, in subsection (4), amends the list of responsibilities of the chief constable set out in section 17 of the 2012 Act.
26.The Code is also embedded in the same way as the policing principles are, by stating that the chief constable is required to seek to ensure that the policing of Scotland is done with due regard to the Code (subsection (4)(b) of section 2 of the Act). That ties in with the duty on the chief constable to ensure that the Code is read and understood by every constable.
27.The final way in which section 2 of the Act weaves the Code in to the existing legal framework is to add reference to it in the constable’s declaration, such that each constable must make a commitment to follow the Code (subsection (3) of section 2 of the Act).