The Act – Section by Section Misconduct procedures Section 9: Scottish police advisory list and Scottish police barred list
79.The police barred and advisory lists aim to provide information as to officers who are subject to disciplinary procedures for misconduct or who have been dismissed or would have been dismissed had they still been in office. Their creation will bring Scotland into line with England and Wales and provide a consistent approach across jurisdictions in Great Britain. The Act provides that the SPA must establish and maintain a Scottish police barred list and a Scottish police advisory list, with powers allowing the Scottish Minsters to make provision in regulations in respect of those lists.
80.Section 9 inserts a new chapter 9A, and new section 59A, into Part 1 of the 2012 Act, after the provision about the police appeals tribunal. New section 59A makes some provision about the lists on the face of the 2012 Act, and provides for the rest to be made in regulations.
81.The duty to establish and maintain the lists is placed on the SPA by section 59A(1) (although the regulations make provision for the circumstances in which the SPA can delegate those functions (section 59A(5)(h)). The circumstances in which the SPA must enter the person on the advisory list are set out in section 59A(2) and (3), and on the barred list in subsection (4).
82.Subsections (2)(a) and (3) of inserted section 59A require a person to be entered on the advisory list if disciplinary proceedings have been brought against the person for gross misconduct and the person ceases to be a constable (whether through resignation, retirement or dismissal for performance) before those proceedings are concluded. Subsection (2)(b) requires a person to be entered on the advisory list if, after the person has ceased to be a constable, disciplinary proceedings are brought against the person for gross misconduct. In either case, it will be possible for regulations under subsection (5) to provide for the person to be removed from the advisory list when the proceedings conclude and to be added to the barred list (if the requirements of subsection (4) are met).
83.Subsection (4) of inserted section 59A requires a person to be added to the barred list if the person is dismissed as a constable for gross misconduct, or a decision is made in disciplinary proceedings for gross misconduct against a former constable that they would have been dismissed if still a constable at that time or they are dismissed as a constable after undergoing vetting.
84.Subsection (5) of inserted section 59A requires that certain persons consult the advisory and barred list before employing or appointing a person.
85.Subsection (10) of inserted section 59A explains what is meant by disciplinary proceedings in section 59A. These are proceedings for gross misconduct brought under the Conduct Regulations. Subsection (10) also provides that the proceedings are brought when the person who is the subject of them is notified of them. Under the current regulatory regime, this means that the giving of the notice of the investigation would be the trigger for entry on to the advisory list.
86.The rest of the detail about the lists, and their effect, is to be made in regulations. Subsection (6) requires the regulations to provide for notice to be given to a person who is added to or removed from either list. Subsection (7) of inserted section 59A, each paragraph of which sets out something that the regulations are empowered to do, allows provision to be made about when someone is not to be entered onto or is to be removed from the lists. This includes making provision for the effect of being on the advisory list or the barred list and expressly includes the power to make provision preventing the employment or appointment of someone on the barred list by a person specified in the regulations. Subsection (7)(i) is a general catch-all to allow the regulations to make provision about other matters concerning the operation of the lists. Subsection (3) of section 9 of the Act amends section 125 of the 2012 Act to provide that regulations under section 59A are subject to the affirmative procedure(9). Section 125(1) of the 2012 Act will enable the regulations to make different provision for different purposes (including different types or ranks of constable) and to include ancillary provision. Subsection (9) of inserted section 59A requires the Scottish Ministers to consult the SPA, the chief constable, the joint central committee of the Police Federation for Scotland and such other persons as they consider appropriate before making regulations under subsection (7) to give full effect to the advisory and barred lists.