Parliamentary Statement on the Chief Constable’s leave of absence
Delivered by Justice Secretary Michael Matheson at 1440 hours on 10 January 2018.
Thank you Presiding Officer.
On 8 September the Scottish Police Authority agreed to a request from the Chief Constable to take a leave of absence while allegations against him are independently investigated by the Police Investigations and Review Commissioner. He issued a statement at that point to deny the allegations and signal his intention to return “once the matter had been resolved”. The PIRC is currently carrying out three investigations into allegations, which after preliminary assessment she considers, if proven, would amount to gross misconduct.
Presiding Officer, I will give Parliament as much information as I can this afternoon. However this is still a live investigation and there are legal issues that I must respect that will constrain the information that can be provided. However, I welcome the opportunity to clarify the engagement the Government had with the SPA around this matter.
Presiding Officer, the SPA and other public bodies are often described as operating at “arm’s length” from government. This means that they have a significant degree of independence within their statutory functions, but operate within a policy framework set by Ministers.
The SPA, as a public body, is accountable to Ministers for the exercise of its functions, and even though Ministers do not normally become involved in individual decisions, the way the body carries out its functions must retain the confidence of Ministers.
Throughout this process, the Government has maintained the position that decisions are for the SPA as the body which has the statutory duty to consider complaints of misconduct against senior officers. At the same time, as a public body that is accountable to Ministers, it is legitimate to seek assurances that the SPA is carrying out its functions in a way that is proportionate, accountable, transparent and consistent with the principles of good governance, as required by legislation. All the Government’s actions have been focused upon ensuring due process and fairness to all parties.
The SPA is reviewing the Chief Constable’s leave position on a 4 weekly basis, with the first review, on 5 October, resulting in a continuation of the leave arrangement. The position was due for review again in early November, and there was no indication from SPA that there was likely to be any change at that point. I am clear that the onus was very much on SPA to inform the Scottish Government if a change in circumstances was considered likely.
On 9 November the then Chair of the Scottish Police Authority, Andrew Flanagan, asked to meet me. At the meeting he informed me that the SPA Board had decided to invite the Chief Constable to resume his duties the following day. I understand that this decision was taken in a private session of the Board on 7 November. There had been no indication that a return to duties was being considered at that point.
When I met the former Chair and learned of the Board’s decision, I sought assurances that they had followed due process. Unfortunately, he was unable to give me those assurances.
Key parties had not been consulted. In particular, the PIRC had not been asked for her view on whether the Chief Constable’s return at that point could impact on her investigations. As the Commissioner highlighted in her letter to the Public Audit Committee last week, the Chief Constable’s leave of absence had allowed the PIRC to interview staff in a “safe space”, helping to minimise any concerns they might have had about being involved in the investigations.
I am sure that Parliament will agree that it is difficult to understand how a decision could be made to for the Chief Constable to return without first confirming that doing so would not undermine the independent PIRC investigations, or the confidence of staff engaged in that process.
Another area of particular concern was that there did not appear to be a robust plan in place to protect the wellbeing of officers and staff who had raised complaints or who may have been asked to play a role in the investigations. A number of these officers and staff were based at the Tulliallan headquarters in close proximity to the Chief Constable, and were in positions where they could expect to be dealing with the Chief Constable in the course of their work.
This also raises questions about whether and to what extent those matters had formed part of the SPA’s consideration of the issue.
I would also highlight that Police Scotland’s own senior command team had not been told about the decision even at that late stage.
I took the view that these clear deficiencies in the process were completely unacceptable. I made clear to the former Chair that I could not have confidence in a decision that had been reached without such significant issues having been properly addressed.
The former Chair agreed that, before proceeding further, the SPA would carry out more engagement with the relevant persons, which I welcomed. I also advised that they should consider seeking advice from HMICS on how they should proceed in terms of process. It is important to stress that throughout this period the Government was not informed that the former Chief Executive had actually already written to Mr Gormley to invite him to return.
Presiding Officer, to those who wish to criticise my actions, I ask them to consider this - had the Chief Constable returned to work on 10 November and had it then transpired that no consultation had taken place with any of the relevant interests and, further, that I had failed to ask any questions about that, I suspect the criticism would be harsher – and in those circumstances, would have been justified.
The SPA subsequently reconsidered the issue on 10 November and decided to continue the Chief Constable’s leave, and has continued to do so at subsequent reviews.
The new Chair has expressed concern about the decision-making process around the Board’s previous decision and has already taken steps to improve the Board’s decision-making process, including the setting up of a complaints and conduct committee. The SPA is now engaging with the PIRC and committed to ensuring issues relating to the welfare of officers and staff involved in the investigations are fully considered.
On 21 December the Chair said
“I am committed to working tirelessly and at speed to address the shortcomings which have been identified and to ensure that in future the SPA's decision making processes and wider governance arrangements meet the standards which should be expected of a major public body.”
The Police Investigations and Review Commissioner has confirmed that the investigations are progressing, though we do not have a firm timescale for them to be completed. It is in the interest of all parties that there is a thorough and effective investigation.
Presiding Officer, I understand Parliament’s interest in this matter and the Public Audit and Post-Legislative Scrutiny Committee raised it with the relevant Director General in Scottish Government in an evidence session on unrelated matters on 21 December. The further information in this statement builds on the evidence provided in that session and the Government will write to the Committee later in the week.
However, members must remember that there is an ongoing formal statutory complaints process and I would caution against expecting SPA, or indeed government, to give a blow by blow account while the investigation continues.
Presiding Officer, public bodies need to be able to inspire not only our confidence as Parliamentarians, but also that of the wider public. The SPA is next due to review the Chief Constable’s leave on 25 January. Whatever decision it makes at that point, it is vital that it is based on a robust process that commands trust. I welcome the assurance the SPA has given that it recognises the importance of that, and look forward to supporting them in whatever way we can.