The Act – Section by Section Police vetting
35.Vetting is an assessment as to a person’s suitability, having regard to the person’s character and personal circumstances, to hold a particular office or role or employment. Someone can fail vetting checks, not because they have done anything wrong or because they are deficient in some way, but because there is something about their circumstances that is not suited to the person being a constable or a member of police staff, such as a family member being connected to someone in organised crime, or the person being heavily in debt.
36.Police Scotland has non-statutory vetting practices in place which are undertaken in line with a non-statutory manual of guidance. The 2012 Act requires that constables are to hold and vacate office as set out in legislation but there is currently no legislative provision for vetting. Accordingly, if a person cannot meet the current non-statutory vetting requirements, that person cannot be dismissed, albeit if the situation that led to them fail vetting was conduct otherwise amounting to a breach of the standards of professional behaviour, then they could be dismissed for misconduct. Therefore, if there is to be the possibility of dismissal for a failure of vetting (for example, in response to matters that leave a constable open to corruption but would not amount to misconduct, like associations with criminals, or unmanaged debt), that requires to be set out in legislation. The Act provides for such a possibility.
37.This gap was identified by the HMICS assurance review of vetting within Police Scotland(7), published on 3 October 2023, which made a recommendation to place into legislation provision for both constables and staff in three different respects: requirements to obtain and to maintain a minimum standard of vetting clearance, and a power for the Chief Constable to dismiss for a failure of vetting.
38.The gap was also identified by the Criminal Justice Committee at Stage 1 of the Bill, who recommended that the Bill should include a power for the Chief Constable to remove someone who is unable to maintain their vetting.
39.There have also been developments in respect of vetting in the wider UK context. On 29 February 2024, Lady Elish Angiolini published her report(8) into the murder of Sarah Everard by serving Met Police Officer Wayne Couzens, commissioned by the then UK Home Secretary in November 2021. In it, she expressed concerns about a lack of periodic re-vetting in England and Wales and, although the recommendations are for police forces in England and Wales, they are also relevant to Police Scotland.
40.The Home Office has published a Vetting Code of Practice and is currently considering vetting regulations for England and Wales, which focus on providing the power to dismiss police officers who are unable to maintain vetting.
41.The Act places vetting on a statutory footing. It requires three things:
	A statutory Vetting Code of Practice to be developed for constables and police staff;
	Regulations to be developed for constables only, which must include the power for the chief constable to dismiss a constable who is unable to maintain vetting; and
	The addition to the barred list of a constable who is dismissed for failing vetting.
42.It treats constables and police staff differently to each other in some respects, reflecting the different legal underpinnings of each. Police constables are ‘office holders’ and their conditions are set out in regulations under the 2012 Act, which also set out the reasons for which they can be dismissed. In contrast, police staff are employees and are bound by employment law and their contractual terms and conditions. They are employed by the SPA, who therefore have a power of dismissal under general employment law but, under section 21(3) of the 2012 Act, they are under the direction and control of the chief constable. This direction and control is reflected elsewhere, such as in section 17(3) of the 2012 Act, which says that the chief constable must, when directing constables, police cadets and police staff in the carrying out of their functions, comply with any lawful instruction given by various bodies. The chief constable also has a power to dismiss police staff. A dismissal for a failure to achieve or maintain vetting is a potentially fair reason for dismissal in terms of general employment law.
43.Accordingly, in respect of constables, the legal authority to dismiss etc. must come from the regulations, with the Code fleshing out and supplementing things that are set out in the regulations in respect of constables. In respect of police staff, the power to dismiss etc. already exists and the Code will set out how it is to be exercised in respect of vetting.
44.The Act’s provision is exclusively concerned with ongoing vetting, after a person has been employed/appointed. It is not concerned with recruitment vetting, which is regulated entirely separately.