THE POLICE and Fire Reform Act 2012 that created Police Scotland built a structure involving a single Police Force, overseen by the Scottish Police Authority (“SPA”), which would link the police to Government.
At the time, serious concerns were expressed about the lack of checks and balances in the Act’s provisions and the fact that no full business case had been produced. The then Cabinet Secretary for Justice, Kenny MacAskill, swept aside these concerns but it is instructive to now consider what has transpired.
The Scottish Police Authority was established to:
- maintain policing;
- promote policing principles and continuous improvement of policing; and
- hold the Chief Constable to account.
It was conceived as an apolitical arms-length body, sitting between policing and central Government, which would provide national strategic oversight and accountability of the single police force.
It consists of a board and senior management team which would be appointed on the basis of specific skills, to create an epistocracy.
So to the Act.
The only explicit reference to “accountability” in the Act is framed as a duty to hold the Chief Constable to account. It does not go on to specify how and is not prescriptive, meaning the SPA has struggled to establish a performance framework or set of criteria against which to achieve this endgame. That, itself, is a function of certain vagueness and ambiguities inherent in the previous system which the Act directly borrowed from.
The Board that has developed is, according to research, a Board which lacks confidence to raise or address issues of public concern and was described by Her Majesty’s Inspectorate of Constabulary in Scotland as “dysfunctional”, with ‘fundamental weaknesses’. It was criticised for conducting financial scrutiny in private, in contrast to the transparency and accountability required.
And it is that very transparency and accountability which is hindered by the 2012 Act, which confers considerable power on the Cabinet Secretary for Justice. It is that post-holder who appoints the chair of the SPA and influences the final composition of the SPA board. It is that Act which gives Scottish Ministers formal powers to give certain directions to the SPA.
There is a perception that the SPA is an extension of the Scottish Government and whether or not that is accurate, it is unhealthy. Policing operates by collective public consent and the public have to know that those in whom they trust are operating free from political influence.
Following sustained criticism of governance and transparency at the SPA, Andrew Flanagan became the second Chair to step down in four years, earlier this year.
And in April 2017, it was reported that an SPA board member had quit over ‘government interference’. Brian Barbour said that the Government received SPA board documents before they were published, in a bid to ‘control the agenda’ and ‘ensure difficult issues’ never made the light of day.
More recently, board members slammed SNP interference in the SPA – making the body ‘useless’ and ‘a waste of time’. Academic research by Dr Ali Malik reveals senior SPA figures complained that the Government is too involved in the watchdog, complaining ‘Every time we try to bite, the government removes a tooth…I have been shocked, absolutely shocked at the level of government interaction.’ Another said ‘The central government throughout the entire process has been far too heavily involved.’
The research also highlighted the Government’s considerable power over the SPA. It said ‘There was a clear perception among some members that the SPA has been slow to develop its approach to police accountability due to external impositions or interference…these observations may be linked to the 2012 Act, which confers considerable power on the Cabinet Secretary for Justice. In brief, the Cabinet Secretary appoints the chair, and influences the final composition of the SPA board. The Scottish Ministers also have formal powers to give directions to the SPA’.
Previously, around the start of 2017, an SPA Board member resigned over concerns she raised about transparency. Moi Ali was informed by SPA chair Andrew Flanagan that it would not be fair for her to participate on the body’s committees after she objected to plans to hold meetings in private. She said: ‘I’m resigning because I don’t think that it is right for anybody to try to silence board members from expressing their views in public.’
Few dispute that SNP backbenchers are unable to express dissent at the Government but during a session of the Public Audit Committee, Alex Neil MSP, a former SNP minister, said ‘You are not running the Kremlin; the SPA is supposed to be an open public body in which you are accountable to the board members’ as he blasted the watchdog for covering up criticism and trying to establish a ‘secret society’. He also said they’d breached ‘every rule in the book’ for not circulating a critical letter from HMICS and concluded ‘this is a shambles’.
Equally, there is evidence to suggest that information flows from Police Scotland to the SPA have been insufficient to allow the SPA to discharge its oversight function effectively.
And the former chair stated that the SPA was not a watchdog as it had no powers of sanction. This has meant that other stakeholders such as the Justice Sub-Committee, the media and the public have been seeking to deliver accountability.
The creation of Police Scotland has meant that, rather than there being eight police commanders, there is now only one. On the one hand, that puts all the power in the hands of one individual; on the other, it leaves that individual vulnerable to shouldering all the criticism for any failures arising. That hardly inspires confidence in the Act’s provisions.
I very much welcome the appointment of Susan Deacon as the new SPA chair. However, the fact that she is the third person in less than five years to occupy the post tells its own story. What is needed to help her is an assurance from the Government that she and any other holder of the office will not have to rely on the goodwill of Government ministers to continue in it. In so many ways therefore, it is now time for the 2012 Act to be revisited, rethought and revised, to help the SPA and the wider Police Scotland structure to move forward.