35.Vetting is an assessment as to a person’s suitability, having regard to the person’s character and personal circumstances, to hold a particular office or role or employment. Someone can fail vetting checks, not because they have done anything wrong or because they are deficient in some way, but because there is something about their circumstances that is not suited to the person being a constable or a member of police staff, such as a family member being connected to someone in organised crime, or the person being heavily in debt.
36.Police Scotland has non-statutory vetting practices in place which are undertaken in line with a non-statutory manual of guidance. The 2012 Act requires that constables are to hold and vacate office as set out in legislation but there is currently no legislative provision for vetting. Accordingly, if a person cannot meet the current non-statutory vetting requirements, that person cannot be dismissed, albeit if the situation that led to them fail vetting was conduct otherwise amounting to a breach of the standards of professional behaviour, then they could be dismissed for misconduct. Therefore, if there is to be the possibility of dismissal for a failure of vetting (for example, in response to matters that leave a constable open to corruption but would not amount to misconduct, like associations with criminals, or unmanaged debt), that requires to be set out in legislation. The Act provides for such a possibility.
37.This gap was identified by the HMICS assurance review of vetting within Police Scotland(7), published on 3 October 2023, which made a recommendation to place into legislation provision for both constables and staff in three different respects: requirements to obtain and to maintain a minimum standard of vetting clearance, and a power for the Chief Constable to dismiss for a failure of vetting.
38.The gap was also identified by the Criminal Justice Committee at Stage 1 of the Bill, who recommended that the Bill should include a power for the Chief Constable to remove someone who is unable to maintain their vetting.
39.There have also been developments in respect of vetting in the wider UK context. On 29 February 2024, Lady Elish Angiolini published her report(8) into the murder of Sarah Everard by serving Met Police Officer Wayne Couzens, commissioned by the then UK Home Secretary in November 2021. In it, she expressed concerns about a lack of periodic re-vetting in England and Wales and, although the recommendations are for police forces in England and Wales, they are also relevant to Police Scotland.
40.The Home Office has published a Vetting Code of Practice and is currently considering vetting regulations for England and Wales, which focus on providing the power to dismiss police officers who are unable to maintain vetting.
41.The Act places vetting on a statutory footing. It requires three things:
A statutory Vetting Code of Practice to be developed for constables and police staff;
Regulations to be developed for constables only, which must include the power for the chief constable to dismiss a constable who is unable to maintain vetting; and
The addition to the barred list of a constable who is dismissed for failing vetting.
42.It treats constables and police staff differently to each other in some respects, reflecting the different legal underpinnings of each. Police constables are ‘office holders’ and their conditions are set out in regulations under the 2012 Act, which also set out the reasons for which they can be dismissed. In contrast, police staff are employees and are bound by employment law and their contractual terms and conditions. They are employed by the SPA, who therefore have a power of dismissal under general employment law but, under section 21(3) of the 2012 Act, they are under the direction and control of the chief constable. This direction and control is reflected elsewhere, such as in section 17(3) of the 2012 Act, which says that the chief constable must, when directing constables, police cadets and police staff in the carrying out of their functions, comply with any lawful instruction given by various bodies. The chief constable also has a power to dismiss police staff. A dismissal for a failure to achieve or maintain vetting is a potentially fair reason for dismissal in terms of general employment law.
43.Accordingly, in respect of constables, the legal authority to dismiss etc. must come from the regulations, with the Code fleshing out and supplementing things that are set out in the regulations in respect of constables. In respect of police staff, the power to dismiss etc. already exists and the Code will set out how it is to be exercised in respect of vetting.
44.The Act’s provision is exclusively concerned with ongoing vetting, after a person has been employed/appointed. It is not concerned with recruitment vetting, which is regulated entirely separately.
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)).
56.Section 5 relates to constables only. As explained, constables are office holders. They are mainly regulated by the 2012 Act, section 12 of which provides that a constable is to hold and vacate office in accordance with regulations made under section 48 of the 2012 Act, or any other enactment which makes provision in that regard. Section 48 requires the Scottish Ministers to make regulations as to the governance, administration and conditions of service of constables and cadets. This very wide power is limited as provided for in sections 49 to 53 of the 2012 Act, each of which is concerned with one or more particular topics.
57.Of the provisions dealing with limitations in respect of particular topics, section 52 of the 2012 Act is concerned with disciplinary procedures. For the most part, the ways that constables can be vacated from office are contained in the current regulations relating to conduct and performance, made under section 52 of the 2012 Act, read with section 48.
58.Section 5 of the Act inserts a new section 50A, Ongoing vetting, into the run of sections detailing how the regulation-making powers under section 48 should be used. Section 50A requires the Scottish Ministers to prepare and lay regulations for the ongoing vetting of constables so as to require a vetting regime that ensures that police constables are re-vetted on an ongoing basis and that provides for dismissal in appropriate cases. Subsection (3) defines vetting for this purpose as, “an assessment as to a constable’s suitability, having regard, insofar as they relate to the ethical standards and behaviour expected of constables, to the constable’s character and personal circumstances, to hold the office of constable or a particular rank or role”. This makes clear that vetting can be tailored to the particular professional circumstances of the constable. The reference to rank does not require there to be vetting on promotion.
59.Subsection (1)(a) requires regulations to provide that constables are to undergo vetting periodically and if a reason to do so arises. Currently, constables can undergo vetting, but they cannot be dismissed directly from failing vetting, as there are no regulations allowing for dismissal following vetting. Section 50A(1)(b) requires the regulations to set out the circumstances in which a constable may be dismissed (with or without notice) or demoted, following vetting. Paragraph (b) does not require the regulation to provide for dismissal both with and without notice but gives the power to provide for either of them and requires that, if either of them is to be a possible outcome, the regulations must set out the circumstances in which it may apply.
60.Subsection (2) sets out provision that may be (but is not required to be) set out in regulations. It gives the power to set out certain things in the regulations but the regulations can make provision about anything that the chief constable would have power to make provision about, whether on the list or not. The purpose of the list is not to list exhaustively everything but to remove any doubt that might exist about particular things. Such provision may include circumstances in which a constable must undergo vetting, other than periodically or with cause, such as upon application for a particular role. It would also allow vetting on promotion, should that be wanted. They may also make provision for the process to be followed in the carrying out of vetting, a minimum frequency for the vetting of individual constables and for vetting to be the responsibility of a particular position. The regulations may provide for duties on constables to disclose changes in circumstances (whether personal (expressly mentioned) or professional (unnecessary to expressly mention because it is obvious that such regulations may provide for duties to disclose changes in professional circumstances)) and to cooperate with vetting. The regulations may (but do not have to) provide for circumstances in which a constable who has undergone vetting is to be required to comply with conditions, such as to move away from a particular role or location, and such conditions may be as to the constable’s personal circumstances, as well as professional. Regulations may also provide for circumstances in which a constable may be redeployed. They may provide for appeals against outcome. They may provide that, pending the completion of vetting or an appeal, a constable may be required to comply with conditions, suspended or redeployed. Finally, the provision expressly provides the power for the regulations to set out what is to happen if something which is at issue in a constable’s vetting is, or is potentially, the subject of criminal proceedings or misconduct proceedings.
61.As regulations made under section 48 of the 2012 Act, the ongoing vetting regulations must be consulted upon as set out in section 54. Section 54(2) requires mandatory consultation on draft regulations with the chief constable, the SPA, the joint central committee of the Police Federation for Scotland, and groups/organisations representative of various ranks of constable. The Scottish Ministers must consider any representations made by these persons/groups. There are therefore arrangements already in place for this mandatory consultation on section 48 regulations. In effect the Scottish Police Consultative Forum (“
62.By virtue of section 125 of the 2012 Act, section 48 regulations are subject to the negative procedure.
https://www.hmics.scot/media/j31bevpb/hmics20231003pub-assurance-review-of-vetting-policy-and-procedures-within-police-scotland.pdfBack [1]
The Angiolini Inquiry – Part 1 Report
The data on this page is available in the alternative data formats listed:
All content is available under the Open Government Licence v3.0 except where otherwise stated. This site additionally contains content derived from EUR-Lex, reused under the terms of the Commission Decision 2011/833/EU on the reuse of documents from the EU institutions. For more information see the EUR-Lex public statement on re-use.
