The Act – Section by Section Police vetting Section 5: Procedures for vetting
56.Section 5 relates to constables only. As explained, constables are office holders. They are mainly regulated by the 2012 Act, section 12 of which provides that a constable is to hold and vacate office in accordance with regulations made under section 48 of the 2012 Act, or any other enactment which makes provision in that regard. Section 48 requires the Scottish Ministers to make regulations as to the governance, administration and conditions of service of constables and cadets. This very wide power is limited as provided for in sections 49 to 53 of the 2012 Act, each of which is concerned with one or more particular topics.
57.Of the provisions dealing with limitations in respect of particular topics, section 52 of the 2012 Act is concerned with disciplinary procedures. For the most part, the ways that constables can be vacated from office are contained in the current regulations relating to conduct and performance, made under section 52 of the 2012 Act, read with section 48.
58.Section 5 of the Act inserts a new section 50A, Ongoing vetting, into the run of sections detailing how the regulation-making powers under section 48 should be used. Section 50A requires the Scottish Ministers to prepare and lay regulations for the ongoing vetting of constables so as to require a vetting regime that ensures that police constables are re-vetted on an ongoing basis and that provides for dismissal in appropriate cases. Subsection (3) defines vetting for this purpose as, “an assessment as to a constable’s suitability, having regard, insofar as they relate to the ethical standards and behaviour expected of constables, to the constable’s character and personal circumstances, to hold the office of constable or a particular rank or role”. This makes clear that vetting can be tailored to the particular professional circumstances of the constable. The reference to rank does not require there to be vetting on promotion.
59.Subsection (1)(a) requires regulations to provide that constables are to undergo vetting periodically and if a reason to do so arises. Currently, constables can undergo vetting, but they cannot be dismissed directly from failing vetting, as there are no regulations allowing for dismissal following vetting. Section 50A(1)(b) requires the regulations to set out the circumstances in which a constable may be dismissed (with or without notice) or demoted, following vetting. Paragraph (b) does not require the regulation to provide for dismissal both with and without notice but gives the power to provide for either of them and requires that, if either of them is to be a possible outcome, the regulations must set out the circumstances in which it may apply.
60.Subsection (2) sets out provision that may be (but is not required to be) set out in regulations. It gives the power to set out certain things in the regulations but the regulations can make provision about anything that the chief constable would have power to make provision about, whether on the list or not. The purpose of the list is not to list exhaustively everything but to remove any doubt that might exist about particular things. Such provision may include circumstances in which a constable must undergo vetting, other than periodically or with cause, such as upon application for a particular role. It would also allow vetting on promotion, should that be wanted. They may also make provision for the process to be followed in the carrying out of vetting, a minimum frequency for the vetting of individual constables and for vetting to be the responsibility of a particular position. The regulations may provide for duties on constables to disclose changes in circumstances (whether personal (expressly mentioned) or professional (unnecessary to expressly mention because it is obvious that such regulations may provide for duties to disclose changes in professional circumstances)) and to cooperate with vetting. The regulations may (but do not have to) provide for circumstances in which a constable who has undergone vetting is to be required to comply with conditions, such as to move away from a particular role or location, and such conditions may be as to the constable’s personal circumstances, as well as professional. Regulations may also provide for circumstances in which a constable may be redeployed. They may provide for appeals against outcome. They may provide that, pending the completion of vetting or an appeal, a constable may be required to comply with conditions, suspended or redeployed. Finally, the provision expressly provides the power for the regulations to set out what is to happen if something which is at issue in a constable’s vetting is, or is potentially, the subject of criminal proceedings or misconduct proceedings.
61.As regulations made under section 48 of the 2012 Act, the ongoing vetting regulations must be consulted upon as set out in section 54. Section 54(2) requires mandatory consultation on draft regulations with the chief constable, the SPA, the joint central committee of the Police Federation for Scotland, and groups/organisations representative of various ranks of constable. The Scottish Ministers must consider any representations made by these persons/groups. There are therefore arrangements already in place for this mandatory consultation on section 48 regulations. In effect the Scottish Police Consultative Forum (“SPCF”) provides a space for engagement and meeting the mandatory consultation requirements on draft regulations that are set out above. The SPCF meets regularly throughout the year.
62.By virtue of section 125 of the 2012 Act, section 48 regulations are subject to the negative procedure.