The Act – Section by Section Part 1 – Police Reform Chapter 17 – Miscellaneous and General
95.This Chapter makes a number of miscellaneous provisions.
96.Section 97 provides for the dissolution of the Police Advisory Board for Scotland.
97.Section 98 makes transitional and transitory provision to ensure that the new SPA and chief constable have all the information they need to prepare for and launch the new services by requiring the current police authorities and joint boards, chief constables and the Scottish Police Services Authority to provide information and assistance to the SPA and new chief constable. There is a reasonable requirement test in relation to such information and assistance.
98.Section 98 also introduces schedule 4, which makes specific provision for the period before the Police Service is established. During this period, senior officers have powers to take appropriate action in anticipation of the establishment of the Police Service or the coming into force of this Act. The chief constable is accountable to the SPA, and the SPA has powers in relation to pay and providing and maintaining anything necessary or desirable connected with the functions of senior officers.
99.Section 98 also introduces schedule 5 which sets out the arrangements for the transfer of officers and staff working in the 8 police forces, SPSA and SCDEA to the new Police Service of Scotland and for the transfer of the assets and liabilities currently held by the joint boards, unitary authorities, SPSA and chief constables. It also makes a number of transitional and transitory provisions to assist in the transition to the new service. Paragraph 1 defines terms used in this schedule, and paragraph 2 sets out that the appointed day is the day the new Police Service is established or such other day as Ministers may appoint. There is no parliamentary procedure attached to this.
100.Paragraphs 3 – 10 cover arrangements for the transfer of police officers. Paragraph 3 makes clear that any person who is a constable immediately before the appointed day holds the office of constable on and after that day, is treated as having made the declaration under section 10, and is to be treated as having been appointed in accordance with the provisions of the Act as a constable of the Police Service. Officers transfer at their current rank, except where they are on temporary promotion in which case they transfer at their substantive rank although the temporary promotion remains in place. Any specific contractual terms, for example fixed term contracts, continue to have effect as if they were made by the Police Service. Under paragraph 4, those appointed under section 7 and who hold the office of chief constable, deputy chief constable or assistant chief constable, immediately before the appointed day, are to serve as a constable of the Police Service on and after the appointed day.
101.Paragraph 5 sets out the arrangements that are to apply to senior officers who are not appointed to positions in the Police Service but who exercise their right to transfer. Paragraph 6 makes clear that any constable of a Scottish police force transfers to serve as a constable of the Police Service, and paragraph 7 covers the arrangements for constables serving in SCDEA or SPSA immediately before the appointed day. Paragraph 8 sets out the arrangements for individuals who are on temporary service immediately before the appointed day. In all cases the arrangements continue as if they had been made by the Police Service. Where the temporary service is to a Scottish force, the individual transfers to serve with the Police Service until the arrangement comes to an end. Where an officer of a Scottish force is on temporary service with another organisation, the temporary service continues and the officer has a right to return to the Police Service at the end of the temporary service. Paragraph 9 makes clear that anything done by or in relation to the police authority, chief constable or any other constable (and equivalents for SPSA and SCDEA) in respect of a constable who transfers to the Police Service continues to have effect after transfer.
102.Paragraph 10 provides safeguards for officers who transfer to the new service. An officer must not be assigned to duties which would necessitate the officer moving home to a place outwith what was the area of the police force that has ceased to exist. Where a constable is engaged on service outwith their home force area on the date of transfer this safeguard only applies on his return to his “home” force area. The safeguard ceases to apply where the constable is or becomes a senior officer, is promoted to a higher rank or the officer consents to the lifting of the limitation.
103.Paragraphs 11 – 16 cover the arrangements for the transfer of staff and others. Under paragraph 11, a police employee is defined as a person employed by a joint board as a civilian, a member of staff at SPSA or an employee of a local authority who is included in a staff transfer scheme made under paragraph 12. It further provides that a police employee’s contract of employment has effect on or after the appointed day as if originally made between the employee and the SPA. It is for the SPA to determine whether the individual is to be regarded as a member of police staff under section 26 who is under the direction and control of the chief constable or as a member of the SPA’s staff under paragraph 6 of schedule 1. Paragraph 11 also makes a number of further provisions concerning staff to be transferred. Sub-paragraphs (4) and (5) establish that contract rights and obligations transfer from the former employer to the SPA on the transfer date. Sub-paragraph (6) provides that staff may inform the SPA in advance of the appointed day that they do not wish to transfer , in which case their contract is terminated on the appointed day. This termination will not be treated as a dismissal. Sub-paragraphs (8) and (9) provide that the right of an employee to terminate their contract of employment as a result of a substantial detrimental change in working conditions is not affected, but the change of employer does not in itself give rise to a right of termination.
104.Paragraph 12 makes provision for a staff transfer scheme for staff employed in the unitary police authorities who are to be treated as police employees for the purposes of paragraph 11. Paragraph 13 covers staff who are appointed under a contract for services. Paragraph 14 covers police cadets and paragraph 15 makes additional provision for Police Custody and Security Officers who will have transferred to the SPA under paragraph 11. Paragraph 16 makes clear that any individual who is an inspector of constabulary, an assistant inspector of constabulary or a staff officer to the inspector of constabulary on the date section 71 comes into force remains in post.
105.Paragraphs 17 – 19 cover property transfers. Paragraph 17 allows Ministers to make a police property transfer scheme. This is a scheme making provision for the transfer to the SPA or chief constable of property, rights, liabilities and obligations of Ministers, a local authority, a joint police board, the SPSA or a chief constable of a police force. Paragraph 18 allows Ministers to make a local authority transfer scheme to make provision for the transfer to a local authority of property, rights, liabilities and obligations of a joint board. Scottish Ministers must be provided with information or assistance reasonably required for the transfer schemes under paragraphs 17 and 18. Paragraph 19 makes general provision in relation to schemes made under paragraphs 17 and 18. Paragraph 20 makes it clear that any liabilities of a chief constable or the Director General of the SCDEA will, on and after the appointed day, be treated as liabilities of the chief constable of the Police Service.
106.Section 99 provides a list of definitions of terms used in Part 1 of the Act. Section 100 deals with the issue of Crown application, providing in particular that the Crown may not be made criminally liable for a contravention of a provision of the Act (but that the Court of Session may make a declarator in respect of any such unlawful act or omission) and that the power of compulsory purchase in section 4(2)(d) does not apply to Crown land.