Scottish Police Authority (SPA) Executive: review

1 Introduction

1A – Why a Review?

16. The SPA came under considerable parliamentary and media scrutiny in 2017, which focused mainly on openness and transparency in conducting its business. There were allegations of a culture of secrecy in the organisation. The Cabinet Secretary asked HMICS to carry out an inspection of the SPA into openness and transparency. HMICS reported in June 2017, by which time the SPA had already put into place a number of changes to its business arrangements, including publishing papers for meetings in advance and conducting business in public whenever possible. To address one of the key recommendations from the HMICS report, the Cabinet Secretary for Justice commissioned a Review to consider how the Executive of the SPA could most effectively support the Board to deliver its statutory functions, including consideration of:

• how the Executive of the SPA works with Police Scotland to collectively provide the information required to support the Board to take informed, transparent decisions in the context of the guidance set out in On Board: A guide for Members of Statutory Boards;
• how the arrangements for engaging stakeholders in the work of the Authority can be strengthened;
• the staffing and operating structure that fulfils the aim of providing the most effective support to the Board; and
• areas where processes could be improved.

17. The Cabinet Secretary also announced that the Review would be jointly led by a Board member and an independent person to be nominated by the Cabinet Secretary, subsequently confirmed as SPA Deputy Chair Nicola Marchant and Malcolm Burr, Chief Executive of Comhairle nan Eilean Siar, the local authority for the Western Isles.

18. Within the scope, the Review leads had the ability to determine their own programme of work, but were expected to engage widely with stakeholders including SPA Staff, the SPA Board, staff associations, Unions, HMICS, Audit Scotland, the Scottish Government, and Police Scotland. In addition, the evaluation and recommendations were also discussed with the newly appointed Interim Chief Officer and Chair.

19. The Review reported its conclusions and recommendations to the Chair of the SPA and the Cabinet Secretary for Justice.

1B – Background and Statutory Position

20. The Police and Fire Reform (Scotland) Act 2012 (the Act) brought about the most significant change in Scottish policing since 1967. The Act brought together the eight police forces, the Scottish Police Services Authority ( SPSA) and the Scottish Crime and Drug Enforcement Agency ( SCDEA) into the SPA and the Police Service of Scotland (Police Scotland). The two new bodies began operating on 1 April 2013. More than 24,000 people, including over 17,000 police officers, were transferred into the SPA and Police Scotland, along with around £1.1 billion of annual spending.

21. The Scottish Government made senior appointments in advance of the start of the new service. The Chair of the SPA was appointed on 31 August 2012, the Chief Constable was in post on 1 October 2012, SPA Board members were appointed on 17 October 2012, with the first public SPA Board meeting held on 3 December 2012.

22. Before reform, local authorities were responsible for policing, and governance was carried out by six Joint Police Boards (where a police force covered more than one local authority e.g. Lothian and Borders) and two Unitary Police Authorities (where the police force covered only one local authority area e.g. Fife), whose members were elected councillors.

The Police and Fire Reform (Scotland) Act 2012

23. The Police and Fire Reform (Scotland) Act 2012 ("the Act") established the Scottish Police Authority ("the SPA") and the Police Service of Scotland ("Police Scotland") on 1 April 2013. In public body terms, the SPA is classified as an "other significant national body".

24. The Act sets out the SPA's main functions, constitution, powers, and relationship with Scottish Ministers. The ones most relevant to this Review are summarised below.

The SPA's Main Duties and Functions

25. The SPA is responsible for the governance, oversight, and administration of the Police Service of Scotland and the provision of forensic services. ^[1] The creation of the SPA ensured that the Chief Constable is free from undue political influence in making decisions about the investigation of crime, while also providing strong governance arrangements and clear accountability. ^[2]

26. The SPA is required to undertake strategic planning and reporting, and to consult stakeholders on the use of its powers.

27. The Act ^[3] sets out five key functions for the SPA. These are:

i. to maintain the Police Service;
ii. to promote the policing principles ^[4] ;
iii. to promote and support continuous improvement in the policing of Scotland;
iv. to keep under review the policing of Scotland;
v. to hold the Chief Constable to account for the policing of Scotland.

28. There is no underlying purpose given to the SPA within the legislation beyond these core functions. However, in his recent thematic inspection report of the SPA, HMICS stated that "effective scrutiny of policing in Scotland is essential in maintaining both legitimacy and public confidence". ^[5]

The Role of Police Scotland

29. Police Scotland, directed and controlled by the Chief Constable, is responsible for providing policing services to help improve the safety and wellbeing of people, places and communities in Scotland. The Act requires the Chief Constable to:

• be responsible and accountable to the SPA for the policing of Scotland
• have direction and control of the police service
• be responsible for the day-to-day administration of the police service
• prepare annual police plans
• seek to secure continuous improvement in the policing of Scotland
• ensure adequate arrangements are in place for the policing of each local authority area.

The Role of Scottish Ministers

30. Scottish Ministers are accountable to the Scottish Parliament for policing. The Act provides a clear separation between Scottish Ministers and policing by ensuring that their role is primarily a strategic one focussed on:

• appointing members, including the chair, of the Scottish Police Authority;
• approving the appointment of the Chief Constable;
• setting national budgets and strategic priorities.

31. The Act also provides Scottish Ministers with a power of direction in relation to the SPA, including in the event of an adverse HMICS report. If applied, this must be published and laid before Parliament.

The SPA's Role in Policing

32. The Act sets out a number of actions and responsibilities relating to policing, which the SPA is required to undertake. These relate to:

• appointments and pay, including: providing police officers with pay, vehicles, equipment and other services; and the Chief Constable with an annual budget; appointing Senior Officers; and employing Police Staff;
• disciplinary procedures, conduct, and performance, in relation to senior officers;
• the provision of Forensic Services and Independent Custody Visiting;
• maintaining suitable complaints handling arrangements;
• the provision of Scottish Ministers with information relating to the SPA or the Police Service; and
• the preparation of a Strategic Police Plan and commenting on the draft Annual Police Plan.

The SPA's Discretionary Powers

33. There are also a number of discretionary powers available to the SPA. These are:

• requesting the resignation or retirement of Senior Officers in the interest of the efficiency or effectiveness of the Police Service. If being used in relation to a Chief Constable, Scottish Ministers must be consulted;
• provide guidance or recommendations on policing; and
• charging for police services. The SPA may authorise the Chief Constable to make arrangements, at the request of any person, to provide and charge for police services.

Scrutiny of the SPA

34. HMICS has wide ranging powers to look into the state, effectiveness and efficiency of both Police Scotland and the Scottish Police Authority. It also has a statutory duty to ensure that the Chief Constable and the SPA meet their obligations in terms of best value and continuous improvement. If necessary, it can be directed by Scottish Ministers to look into anything relating to the SPA or Police Scotland as they consider appropriate. The SPA must assist and co-operate with these inquiries. HMICS also has an established role in providing professional advice and guidance on policing in Scotland.

35. The Auditor General has powers to examine the economy, efficiency and effectiveness with which the SPA has used its resources.

36. The Police Investigations and Review Commissioner ( PIRC) is required to ensure that the SPA and the Chief Constable make and maintain suitable arrangements for the handling and examination of complaints about police constables and staff, and to investigate matters relating to the Police Service or the SPA that it considers are in the public interest. They are also responsible for investigating allegations of misconduct in respect of senior police officers. ^[6]

37. The three organisations are required to co-operate and co-ordinate activity with each other to improve the carrying out of their respective functions in relation to the SPA, including sharing information and preventing duplication.

Annual Report and Accounts

38. The SPA is required to produce an annual report and keep proper accounts and records in relation to the accounts, which must be audited.

Governance

39. The Act sets out a number of governance requirements relating to the SPA, including that its proceedings, and those of its committees and subcommittees, are by default, to be held in public with published agendas and papers.

40. There is also a provision for all or part of any proceedings to be held in private, or all or part of any agenda, paper or report need not be published. However, the SPA must publish a statement setting out the circumstances in which this may happen.

41. While the Board will hold its meetings in public wherever possible, the SPA's Corporate Governance Framework details the circumstances in which proceedings will be held in closed session, such as where the information to be discussed consists of or includes the personal data of individuals who have not provided their consent to its disclosure; or where public discussion of the information may prejudice national security, legal proceedings (including misconduct or disciplinary proceedings), or police operations; or where any of the information to be discussed is commercially sensitive, financially sensitive, relates to proposals for significant organisational change or to significant changes to the terms and conditions of staff.

42. The SPA is required to have an Accountable Officer ( AO), with personal responsibility for the propriety and regularity of the public finances for the SPA, ensuring that its resources are used economically, efficiently, and effectively. The AO is directly accountable to the Scottish Parliament.

Role as a Public Body

43. As a public body in Scotland, in the other significant national body category, the SPA has a number of statutory duties, including:

• after every financial year, publish information about expenditure incurred in connection with public relations, overseas travel, hospitality and entertainment, and external consultancy. This includes payments which have a value in excess of £25,000 and the number of individuals who received remuneration in excess of £150,000; ^[7]
• every two years, to publish a report on equalities duties, to include information on equality outcomes, mainstreaming equality, and promoting diversity within the SPA; ^{[8] [9]}
• to publish a Code of Conduct for Board members based on the Model Code, approved by Scottish Ministers; ^[10]
• every five years to produce a records management plan; ^[11]
• adopting and maintaining a publication scheme and responding to Freedom of Information requests; ^[12]
• every year to provide a notification of personal data processing with the UK Information Commissioner's Office; ^[13]
• the Scottish Public Services Ombudsman can investigate complaints about how the SPA has carried out its functions (like any other public body). However, it has no role regarding complaints about police officers; ^[14]
• every year, to publish a forward-looking procurement strategy and forward-looking procurement report; ^[15]
• every three years to provide a publicly available report on the actions taken to meet the biodiversity duty; ^[16]
• every year to publish a report on compliance with climate change duties. ^{[17] [18]}

44. There is also an expectation that the SPA produces a corporate plan every three years and an annual business plan.

1C – Methodology

45. The Review was led by Malcolm Burr, Chief Executive of Comhairle nan Eilean Siar, the local authority for the Western Isles, and Nicola Marchant, Deputy Chair of the SPA. It was supported by civil servants from the Scottish Government, including a contribution to the section of the report on the background and statutory position.

46. The Review was undertaken by a six–stage process in which the involvement of key stakeholders was of primary importance:

i. an initial scoping and fact-finding phase looking into the current governance landscape, SPA founding legislation, best practice from elsewhere, and exemplar organisations;
ii. an evidence-gathering phase on the operation of the SPA since inception, views on how the SPA Board can best deliver their statutory functions, and stakeholder engagement with the support of the SPA Executive team through a series of engagement sessions with stakeholders;
iii. a critical evaluation of the evidence phase leading to the identification and summary of the key issues and challenges, framed around the remit, from the stakeholder engagement;
iv. the development of proposals for recommendations to address challenges and to suggest improvements;
v. a re-engagement with key stakeholders to test assumptions and build consensus, where possible, around evaluation of evidence and proposed recommendations;
vi. the writing and issuing of the final report to the Cabinet Secretary for Justice and the Chair of the SPA Board.

47. At the start of the Review process, a very wide range of organisations were informed of the Review as publicly announced by the Cabinet Secretary for Justice. ^[19] At Stage 2, stakeholders were asked to give their views on the current situation, key challenges, and opportunities, and to explore the various roles and responsibilities. Initial views on what should be improved or changed were also sought. These activities included a number of face-to-face and telephone semi–structured interviews as well as written submissions.

48. The Review team then analysed this information alongside a wide range of information from internal and external sources, including previous reviews and audits. Broad options for change and improvements were then developed, which formed the basis for a second smaller round of discussions with stakeholders, including Police Scotland and HMICS, at Stage 5.

49. A draft report and recommendations were also considered by the SPA Interim Chief Officer, the incoming Chair, and Members of the Board, as the SPA leadership will effectively own the report and use it as the basis to instigate the required transformational changes.

50. The findings and recommendations of the Review and any views expressed are those of the Review Team, although the views of key internal and external stakeholders, including the SPA Interim CEO and Chair have been fully taken into consideration.