45.Section 4 of the Act amends the 2012 Act, by inserting into it a new chapter, Chapter 4B Vetting Code of Practice, which consists of two sections: sections 36C and 36D. Section 36C requires the chief constable to develop a statutory code for vetting to be known as the vetting code of practice (subsection (1)) and defines vetting with respect to both constables and police staff (subsection (3).
46.Subsection (2) of section 36C sets out the sequencing of the Code (which applies to police staff and, in some respects, to both police staff and constables) and the regulations (which apply to constables only). This is necessary because, as secondary legislation, the regulations must take precedence over the Code (which is set out for the avoidance of doubt in subsection (8)) and because, in respect of constables, it will be the regulations that set out the essentials of the vetting regime, on which the Code will build. Therefore, subsection (2) provides that, while the Code must be prepared as soon as practicable after section 4 of the Act comes into force, the chief constable is not to begin consultation in respect of the Code until the chief constable has seen the content of the draft vetting regulations (so the chief constable can, before the a draft of the Code is shared, be sure that it is consistent with the regulations). Finally, the Code will not have effect until the regulations come into force, ensuring that the underlying framework of vetting procedures for constables is in force before the Code comes into effect to add flesh to that framework.
47.Subsection (3) defines vetting for the purposes of the Code: it is an assessment as to a person’s suitability, having regard to the person’s character and personal circumstances, in respect of constables, to hold the office or a particular rank or role and, in respect of police staff, to be a member of staff or to hold a particular role. The reference to suitability for the particular role indicates that vetting checks, and the outcomes that result, should be tailored to the particular circumstances. It is not expected that police staff in lower grade roles without access to sensitive information will have to comply with the same regime or be subject to the same sanctions as a member of staff whose privileges and powers are akin to a constable.
48.Subsection (4) sets out mandatory requirements of the Code in respect of police staff (the things that must be set out in respect of constables will be in regulations and so this provision applies only to staff). The Code must provide for periodic vetting and for vetting if a reason to do so arises. It must also provide for the circumstances in which staff will be subjected to a particular outcome following vetting, including complying with conditions, redeployment, demotion and dismissal (with or without notice). It will not be proportionate to dismiss a member of staff who has undergone vetting if a lesser sanction would suffice to meet the risk. Subsection (4)(b)(iv) requires the Code to provide for either dismissal with notice or dismissal without notice and it allows the Code to provide for both. It does not require both dismissal with notice and dismissal without notice.
49.Subsection (5) requires that provision in the Code about the vetting of constables and police staff must include provision about the types of evidence required to demonstrate that the person is not suitable for their role etc. There are many types of evidence, including direct, circumstantial, documentary, statistical, physical, and testimonial evidence. The provision does not set any minimum requirements or limits as the type of evidence that can be so required, so it is of limited practical effect.
50.Subsection (6) applies to both constables and police staff and requires the Code to include provision for written reasons to be provided if a person is required to comply with conditions, or is redeployed, demoted or dismissed. Reasons for a decision of that nature would typically be provided in writing anyway and the provision does not set any particular requirement as to the adequacy of reasons, so it is of limited practical effect.
51.Subsection (7) applies to both constables and police staff. It sets out things which the Code may, in particular, do. The Code can make provision about anything that the chief constable would have power to make provision about, whether on the list or not. The list removes any doubt that might exist about particular things. Provision made under subsection (7) will flesh out what is set out in the Code for staff under subsection (4) and set out in regulations for constables. Such provision may include the frequency of vetting of a person (subject to the provision in regulations which makes provision for the minimum frequency of vetting of individual constables), the circumstances in which with-cause vetting will occur, different categories of vetting, and steps that may be taken upon the disclosure of certain information. In addition to providing for what the non-exhaustive list in subsection (7) sets out, it is expected that the Code will set out many additional details including appeal processes, support for individual members of staff and procedural safeguards, and will cross-refer to other policies and processes.
52.Subsection (9) allows the chief constables to prepare more than one vetting code of practice to make provision for different categories of person, roles or other purposes. Given that there is a wide variety of roles that staff can perform, not all of which carry the same risk, the vetting regime for staff will not be the same in every respect for all staff and the regime for at least some staff will look different to that for constables.
53.Whilst the duty to prepare the Code lies with the chief constable, there is a duty to involve the SPA in the preparation of the Code and the SPA must assist the chief constable (subsection (10)). This reflects the role that both have in respect of the direction of police staff in particular. It is a model of working together that already exists under the 2012 Act (see section 34(4) in respect of the strategic police plan for example) and which is also set out for the Code of Ethics (discussed above).
54.The Code must be published on a website and laid before the Scottish Parliament (subsection (11)).
55.Section 36D relates to the preparation and revision of the Code. The Code must be consulted on with the organisations and representative bodies listed in subsection (1) and any representations made must be considered. The chief constable must review the Code at least once every five years, ensuring it is current and up to date (subsection (2)).
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