(1) There shall be established a body known as the Police Complaints Panel for Scotland (hereinafter referred to as "the Panel"), which consist of not less than three members appointed by the Secretary of State.
(2)— (a) Subject to subsection (5) below, where under regulations relating to discipline made from time to time under section 26 of the Police (Scotland) Act 1967 the deputy chief constable of a police force has considered a report submitted to him by an investigating officer of an investigation made by that officer into a complaint by a member of the public against a constable of that force not being a chief constable, deputy chief constable, or assistant chief constable and the deputy chief constable has decided that the constable shall not be charged with a disciplinary offence he shall—
(b) If the complainer fails, within the prescribed period, to elect to have the complaint referred to the Panel, the Panel shall have no function under this section in relation to that complaint.
(c) Where the complainer has elected to have the matter referred to the Panel under (a)(ii) above the deputy chief constable shall send to the Panel a copy of the report of the investigation together with—
(3) — (a) Where the report of an investigation into a complaint is sent to the Panel under subsection (2) above, the following provisions of this section shall have effect in relation to disciplinary charges in respect of the matters complained of, and for the purpose of discharging their functions under those provisions the Panel may request the deputy chief constable to furnish the Panel with such additional information as they may reasonably require.
(b) The Panel may, if they disagree with the decision of the deputy chief constable not to bring disciplinary charges, make recommendations to him as to the charges which they consider should be brought, and if after the Panel have made such recommendations, he is still unwilling to bring such charges as the Panel consider appropriate, they may, after consulting him, direct the deputy chief constable to bring such charges as they may specify.
(c) Where the Panel give a deputy chief constable a direction under paragraph (b) above they shall furnish him with a written statement of their reasons for doing so.
(d) The deputy chief constable shall comply with any direction given to him under paragraph (b) above and with any request under paragraph (a) above.
(4)— (a) Subject to subsection (5) below, where the deputy chief constable of a police force has considered a report submitted to him by an investigating officer of an investigation made by that officer into a complaint by a member of the public against a constable of that force not being a chief constable, deputy chief constable or assistant chief constable, and he has decided to charge the constable with a disciplinary offence, he shall refer the matter to the Panel and shall send to the Panel a copy of the report of the investigation together with—
(b) The deputy chief constable shall not refer a complaint to the Panel where—
(c) Where disciplinary charges are brought in pursuance of a recommendation or direction under subsection (3)(b) above the deputy chief constable shall before the hearing of those charges, send to the Panel a copy of the particulars of those charges.
(d) Where disciplinary charges have been brought as mentioned in paragraphs (a) or (c) above, they shall not be withdrawn except with the leave of the Panel.Panel.
(5).— (a) Where a complaint by a member of the public against a constable of a police force not being a chief constable, deputy chief constable or assistant chief constable is made, from which it can reasonably be inferred that the constable may have committed a criminal offence, the allegations in the complaint and the report of any investigation into the complaint, shall as soon as possible be submitted by the deputy chief constable to the procurator fiscal, and the deputy chief constable shall make no decision regarding the bringing of disciplinary charges arising out of the allegations or report, nor shall any reference be made to the Panel under subsection (2) or (4) above until it has been intimated whether or not criminal proceedings are to be instituted.
(b) Where it has been intimated to the deputy chief constable that criminal proceedings are not to be instituted, a disciplinary charge shall not be brought, nor shall a reference to the Panel be made, in respect of any act or omission referred to in the allegations or report which, if proved, would constitute a criminal offence, and where criminal proceedings are instituted in respect of any such act or omission a disciplinary charge shall not be brought, nor shall a reference to the Panel be made, in respect of such act or omission.
(c) Paragraph (b) above shall not be construed as applying to a charge in respect of an offence against discipline which consists of having been convicted of a criminal offence, or of having been made the subject of an order under section 182 or section 383 of the Criminal Procedure (Scotland) Act 1975, (absolute discharge) or of a probation order under section 183 or section 384 of that Act.
(d) No reference shall be made to the Panel under subsection (2) or (4) above nor shall the Panel have any function under this section in respect of the bringing of disciplinary charges relating to a disciplinary offence which has not been complained of or specifically mentioned in the complaint referred to in paragraph (a) above.'.—[Mr. Dewar.]
§ Brought up, and read the First time.
§ Mr. Deputy Speaker (Mr. Bernard Weatherill)
With this we may take amendment No. 265, the new schedule—The Police Complaints Panel for Scotland—
§ Incorporation, Status, and Membership
- 1. The panel shall be a body corporate.
- 2. The Panel shall not be regarded as the servant or agent of the Crown or as enjoying any status, privilege or immunity of the Crown.
- 3. Subject to the following provisions of this Schedule, a person shall hold office as a member or as chairman of the Panel in accordance with the terms of his appointment.
- 4. A person shall not be appointed as a member of the Panel for more than three years at a time.
- 5. A person may at any time resign his office as a member or as chairman.
- 6. The Chairman shall cease to hold that office on ceasing to be a member of the Panel.
- 7. The Secretary of State may at any time remove a person from office as a member if satisfied that—
- (a) he has without reasonable excuse failed to carry out his duties for a continuous period of three months beginning not earlier than six months before that time; or
- (b) he has had his estate sequestrated or has made a trust deed for behoof of his creditors or a composition contract; or
- (c) he is incapacitated by physical or mental illness; or
- (d) he is otherwise unable or unfit to perform his duties.
8. In Part II of Schedule 1 to the House of Commons Disqualification Act 1975 and Part II of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (bodies of which all members are disqualified under those Acts) there shall be inserted at the appropriate place in alphabetical order—
§ "The Police Complaints Panel for Scotland".
9. The Secretary of State shall, after consultation with the Panel, and subject to the consent of the Minister for the Civil Service, provide from time to time such of his officers and servants and such accommodation and facilities as appear to him to be requisite for the Panel to exercise their functions.
10. — (1) Subject to the provisions of section (Police Complaints Panel for Scotland), the arrangements for the proceedings of the Panel (including the quorum for meetings) shall be such as the Panel may determine.
(2) The arrangements may provide for the discharge, under the general direction of the Panel, of any of the Panel's functions by one or more of the members of the Panel.
11. The validity of any proceedings of the panel shall not be affected by any defect in the appointment of a member or by any vacancy among the members or in the office of chairman.'.
§ Mr. Dewar
This is my second intervention in these long proceedings and I approach it a little shamefacedly, because it may seem anomalous to propose to add to a complicated Bill a new clause dealing exclusively with Scottish matters. However, it is appropriate, because if it is inconvenient for the Government and for many of my English colleagues, who will see the new clause as a break in the natural sequence of events, it is an inconvenience which the Government have brought on themselves. The Bill includes a group of three or four clauses that apply to Scotland as well as to England.
There is much resentment, not only in Scottish legal circles but among others who take an interest in Scotland's place in the legislative process, at the Government's increasing habit of slotting in quite important pieces of legislation that affect Scotland. Presumably that is done for the Government's convenience, but it is not convenient for anyone else.
The Under-Secretary of State for Scotland knows that the Scottish Law Agents Society, the Law Society of Scotland and a wide range of other bodies have made strong and spirited protests about the way in which the Scottish legal system has been treated. The Government's actions on this Bill are not unique; we had the same treatment in the Transport Act and in a number of other measures, including the Health and Social Services and Social Security Adjudications Bill, which has important implications for Scotland. It is extremely difficult to scrutinise, monitor and do what Parliament is supposed to do when we have Scottish clauses lost in a morass of undoubtedly important and relevant English matters.
Mr. Kenneth Pritchard, the secretary of the Law Society of Scotland, wrote to the Lord Advocate stating the view of the criminal law committee of the society. He referred to theunanimous abhorrence of the Committee … at the manner in which little bits of Scottish legislation were 'tacked on' to yet another English Bill, almost as an afterthought.Mr. Pritchard concluded:I share that view.No doubt we shall return to that theme when we reach the Government amendments to the Scottish clauses, probably on Monday. I make the point because it is important to establish our right to bring home to the Government the inconvenience that they are causing.
338 I accept that the police complaints procedure is a sensitive subject. I do not want to exaggerate or be alarmist about the number of complaints or the problems that we face, but the police would be the first to admit that this is a sensitive area. By coincidence, the Scottish Police Federation has been holding its annual conference this week. According to the Glasgow Herald of 28 April, one of the federation's principal spokesmen, Mr. Kennedy, said thatthe campaign to discredit the forces of law and order by the vociferous minority was gaining momentum … It was based on two fronts, police accountability and the system of investigating complaints against the police… On the subject of complaints there were many police who believed that they were being sacrificed at the altar of public appeasement. Mr. Kennedy said that should be of grave concern to the silent majority to whom the police looked for support.I do not necessarily accept those sentiments. I quote them to show that there is concern about the way in which we handle complaints against the police, and that concern exists at both ends of the spectrum. Many in the civil liberties movements are worried about the adequacy of the present complaints procedure, and the new clause is aimed at meeting some of the reasonable points made in that respect. There is also concern among the police. I shall argue that a more adequate complaints procedure, which would reassure the public about the seriousness with which such matters are dealt, would be in the interests of the police and might remove the slightly agonised atmosphere that surrounds the subject and is reflected in the remarks that I quoted.
The new clause is also appropriate—the Minister will be familiar with the point—because the Government have just produced a consultative document as an aftermath of the Scarman report on the troubles in the south, London and so on. As a result of that and the investigation of the Select Committee on Home Affairs, a rather cautious consultative document was issued by the Scottish Office in October 1982. I hope that the debate will give us an opportunity—I see that the hon. Member for Dundee, East (Mr. Wilson) has appeared in our midst—to say a word or two in response to that consultative document on how reform might proceed.
There is a tendency for the consultative document to be rather complacent in its tone, though it makes some perfectly fair points which I should not dispute. For example, I do not disagree with the fact that, pro rata, the number of complaints in Scotland is lower than in England. I am not so sure that the Ministers are right when they say that there is less public concern in Scotland. It may be a little less sharp because we do not have the same overtones of crisis as England, particularly with the ethnic minority communities in London, Liverpool and so on.
There is concern, however, and we are entitled to enter a note of caution. I put it no higher than that. For example, in 1976, 1,225 complaints were lodged against the police and in 1981 there were 1,186. It has remained roughly the same for the last decade, which is as far back as I can go. Those sound comparatively modest figures, but it is fair to say that some caveats must be entered.
Speaking from experience, I suspect that this is one set of figures where under-recording is a serious problem, for all sorts of reasons. When I was in practice, I found that people would start an interview by making what amounted to a complaint, sometimes quite serious, against the police, and by the end of the interview they had talked themselves into a state of almost resignation where they 339 did not think it worth while to lodge a complaint or take the matter further. Some were people who were used to being in trouble with the police and tended to see it all as just another engagement in a war between themselves and authority which was likely to continue indefinitely.
It would also be fair to say that in many cases I met an apprehension about the consequences of making complaints about the police which although in a sense were unreasonable were perhaps understandable. Indeed, as a solicitor I was often in the position of explaining the process of investigation to people and saying that there would be pressures on the complainant if the investigation were to be taken seriously. I do not necessarily complain about that, but it was a substantial disincentive. The hon. Member for Dundee, East, who has practised in the west of Scotland as a solicitor, will probably agree. Many complaints against the police are drawn informally to the attention of the authorities—whether valid or not is not for me to say—which do not get into the annual totals of just over 1,000 that we have been considering.
People are also understandably deterred by the evidential difficulties of making a complaint stand up. I touched upon that in an earlier debate. The very nature of complaints against the police and the circumstances in which they take place make it likely that it will be the complainant's word against the people whom he alleges have carried out the wrongful act. There will be great difficulties about corrobation. As I said earlier, it will be a classic two cop breach situation which leads to great difficulties in other circumstances.
From my experience I know that clients and others in that position say that they resent what happened, that it was wrong, but that they do not believe the complaint will ever stand up and will therefore allow it to drop —anything for a quiet life. Although I accept that the figures are lower in Scotland than in England, in Scotland, as in other places, under-recording should be kept in mind.
I say all that, but I am not making an assumption of widespread abuse. When talking about the system of control, I am not suggesting that the police would ever connive at a cover-up or at a continuing abuse of power by a policeman. We must, however, face the fact that there will be instances in which corners are cut, tempers are lost and there are acts of discourtesy or even dishonesty. It is important that we have a system in which the public have confidence, and that people who have to seek its protection feel that it will give that protection and will be used fearlessly in the public interest. That is in the interests of the police as certainly as it is in the interests of the public.
One of the repeated themes in debates such as this is that it is vital to protect the police from the frivolous complaint. Anyone who has been involved, even at the periphery, as I have been as a solicitor, will have seen and heard of such incidents. We are all too familiar with the person who tries to put the finger on the police in revenge or to explain embarrassing circumstances. The Lord Advocate, when talking to the Scottish Police Federation a few days ago, said that the Government were alarmed about frivolous complaints about the police. I am interested in having an adequate, independent safeguard that will safeguard the police as well as the public.
340 It is an uncharacteristic evening when I am again in the same camp as the hon. Member for Bury St. Edmunds (Mr. Griffiths). He was reported in the press this morning as expressing considerable alarm about the way in which disciplinary proceedings are conducted and about the rights of the police when they are the object of disciplinary hearings. I have a great deal of sympathy with the hon. Gentleman's opinion on serious disciplinary hearings and the rights and safeguards available to police.
§ Mr. Eldon Griffiths
Many police officers have had the experience, when arresting a frequent offender, of hearing the statement, "You do me and I will do you." The person being arrested means that he will bang in a complaint against the police officer for some improper behaviour.
§ Mr. Dewar
That is a risk, and the hon. Gentleman makes a fair point. He will also accept that sometimes he, like me, constructs classic cases that are more common in debate than in reality. However, they do occur and can create great difficulties for policemen in the course of their duties.
The new clause deals with discipline in a similar way to the criminal offence that goes to the procurator fiscal and then to the Crown Office. It makes a radical difference to the discipline spectrum of the range of complaints and is relevant to circumstances such as those described by the hon. Member for Bury St. Edmunds.
§ Mr. George Robertson (Hamilton)
I accept that whenever we consider cases such as this we have to accept some external advice on what the problems might be in setting up a new set of machinery. To complement the example given by the hon. Member for Bury St. Edmunds (Mr. Griffiths), there is the classic case of the individual who, when arrested by the police, says, not that he will go through the long process of the complaints procedure but that he will get at the policeman in some other way. Is the assumption in these other cases that we should not prosecute criminals or use policemen to arrest people simply because there are some criminals who, when arrested, make the threat that physically or otherwise they will get at the police officer? Sometimes the classic cases that are used do not prove the point being made.
§ Mr. Dewar
With respect to my hon. Friend, I hope that no one will draw that inference from the circumstances that we have been discussing. The police officer has a duty to do, and, without being too pompous about it, one hopes that he will do his duty, even when faced with that type of blackmail.
The only point that arises is the protection that we can give the police, who need protection as much as the innocent citizen who is about to be arrested or to tangle with the law. We must preserve the excellent police-public relationship that we have had in Scotland over the years. Much anxiety has been expressed by myself, among others, about the damage that we fear may flow from recent changes in the law affecting specific areas of public opinion and specific problems that arise from the detention and the stop-and-search powers in the Criminal Justice (Scotland) Act. I repeat that on the whole we are fortunate in the trust that exists. We must be vigilant to maintain that trust, because there is always a danger—for instance if we ignore anxiety about matters such as the police 341 complaints procedure—that in the longer term we shall undermine the excellent relationship between the police and the public.
I said that I thought the consultative document was a touch complacent. In a sense, the new clause is an attempt to suggest departures that are not covered by the consultative document, but which I think might usefully be mentioned in it. On reading the document, one would think that all was for the best in the best of all possible worlds. The Minister refers, for example, to the Home Affairs Select Committee's finding in paragraph 43 that if a Crown prosecution system were introduced in England within a five-year span, no reform ad interim would be necessary.
The document goes on to refer to the place of the procurator fiscal—undoubtedly a significant one—in the Scottish system, and therefore to assume, I think, that no major changes are necessary. I am a great defender of the fiscal system and the independent prosecution approach in Scotland. The English would be well advised—though it is not for me to give them advice; they probably would not listen anyway—to press on with the strong case that is now mounting for a Crown prosecution service south of the border.
We should not think that the procurator fiscal is the answer to all the problems in the Scottish system. Sometimes when I read these documents I think that the role of the procurator fiscal in Scotland is the one that was seen so dramatically on our television screens in "Sutherland's Law", where the fiscal was a high-powered Maigret going out into the field to solve the problems personally and to detect and arrest the criminals. In the final resort, the procurator fiscal has to rely on the feed of evidence from the police. He does not have an independent investigative capacity. He may make suggestions and express discontent, and he may issue instructions, but to a large extent—I see the Solicitor-General for Scotland giving me a sideways look—he has to rely on what the police do on his behalf.
I do not want to envelop the House in statistics, facts and figures, but, if we look at police complaints for 1980, we see that the global total was 1,034, of which a very high number, 304, were withdrawn, 487 were not substantiated, only nine were proceeded with, two resulted in guilty pleas, and two resulted in formal disciplinary procedures. For 1981, the figures were 1,186 complaints, of which 275 were withdrawn, 648 were not substantiated, 11 were proceeded with, two people were convicted of some offence, and five were the subject of formal disciplinary procedures. I do not want to sound like a cynic or be alarmist, but, even allowing for all the evidential difficulties about which we agreed earlier, I should have thought that those figures give cause for anxiety. I put it no higher than that.
In addition, the Police (Discipline) (Scotland) Regulations 1967 deal with many other disciplinary matters. There were 185 disciplinary proceedings in 1980 and 211 in 1981. I do not know how many cases were considered for disciplinary proceedings or how many police officers appeared and no action followed. The numbers that I have given refer, I believe, to cases in which there was a positive — if I can use that term neutrally—outcome. If one looks at the total number of complaints and sees what they boil down to at the end, one sees that there is no room for complacency.
342 Having set the scene, I admit that I have drawn attention to the need to be constantly vigilant about the procurator fiscal's role when there is a prima facie case for believing that a criminal offence might have been committed. Under new clause 21, that relationship will continue. I do not pretend that we are redrawing that part of the system. We shall have to continue to accept that when it may reasonably be inferred—I believe that that is the phrase used—that a criminal offence has been committed, there should be a referral to the procurator fiscal at the earliest opportunity, and from the procurator fiscal to the Crown Office. That is restated in new clause 21. I believe that at this stage we cannot improve that system, although if the new clause becomes law, or finds favour in an amended state, I hope that emphasis will be given to the fact that there should be a referral to the procurator fiscal as soon as possible.
I do not want to go into individual cases. There is at least one important one still being investigated. However, on the facts as known so far to the public — for this purpose I am a member of the public — it seems that there was an extraordinarily long delay before the case was reported to or reached the procurator fiscal's office. It is a case to which we can return when we are free to do so.
The new clause will leave the procurator fiscal's role and possible criminal prosecution as they are. What will be altered, and it is important that it should, is the procedure where there is a possibility of disciplinary misconduct, but not necessarily a prima facie case for criminal prosecution.
The new clause proposes setting up in Scotland a Police Complaints Panel which will consist of at least three members appointed by the Secretary of State. In some quarters of the House there is always a little allergy about the appearance of a new quango, but this is a modest one and I believe that it would fulfil a useful and important role.
I hope that the new clause is easily read and understood. It would be activated in a number of different circumstances. The first, and perhaps in some ways the most important, is where there has been a complaint to the chief constable, an investigation has followed and no disciplinary proceedings are to be taken. In those circumstances, the chief constable, by law, would have to tell the complainer his decision with a statement explaining the reasons for his action. If the complainer was dissatisfied with what had happened and felt that there was something that should be investigated further, he could refer the matter to the Police Complaints Panel, which could examine the circumstances and decide whether further police investigation was required.
Having considered the evidence, which would have to be supplied by the chief constable, the panel might recommend that disciplinary proceedings be instituted and, in extrernis — such occasions would be rare, but this is an important fall-back power—it could give instructions that certain charges be brought under the 1967 disciplinary regulations. That introduces an important element of independent surveillance into the system when a complaint has been made but no disciplinary proceedings have resulted.
Among the endless possible variations, there is the obvious case in which disciplinary proceedings are pending. In those circumstances the chief constable would 343 notify the board of that fact and say whether he thought it would be useful for members of the board to attend the proceedings. I should perhaps apologise for the fact that this is not spelt out in the new clause, but I envisage that if members of the board exercised their right to attend the disciplinary proceedings they could not intervene as cross-examining agents, although they could clarify any points that arose. Certainly, a representative of the board could and should be consulted by the chief constable before he reached his final decision.
I refer to that because, as the Minister will realise, there is something familiar about the new clause. In fact, it is built on the bones of the Police (Scotland) Bill produced by my right hon. Friend the Member for Glasgow, Craigton (Mr. Millan) in 1976. That was a good Bill, which failed to find a place in the Labour Government's programme. I say unashamedly that in my view that was a pity. However, it has now been produced again in the shape of the new clause and I hope that it will find favour with the Minister today.
For completeness, the schedule in this group deals with the incorporation, status and membership of the Police Complaints Panel. I think that, by and large, it is self-explanatory, so there is no need for me to weary the House through every paragraph and sub-paragraph of it.
§ Mr. Dewar
I am sure that the hon. Member for Thornaby (Mr. Wrigglesworth) is more sincere in that comment than in many of his observations from the alliance Bench.
As I have said, it is appropriate that we should consider these problems in the immediate aftermath of the consultative document to try to put a little more backbone into the Government's proposals and perhaps to persuade them to look a little more bravely at these matters. I hope that the Minister will not think me ultra-critical when I say that he made a few tepid proposals that were then almost knocked down in his own paper. For example, he asked whether there should be a written explanation of the reasons for refusing a complaint, but went on to make it clear in the same paragraph that he was against such explanations being given. Similarly, he asked whether officers from outside forces should be used as investigating officers, but knocked that down by saying that the idea might have had some plausibility in the days before the amalgamation and regionalisation of police forces, thus implying that it was no longer necessary.
The Government's document is something of a mouse. Given the sensitivity of these matters, I do not believe that it fits the bill, and it certainly does not tackle the main question about police complaints procedures—whether it is right to introduce some element of independence and, if so, what is the most convenient, economical and sensible way to achieve that so that a proper balance is struck between safeguarding the public interest and allowing the police to operate in a responsible way without feeling threatened by the complaints system.
A Scottish solution must be found to the problem. I should not like to have the English three-tier system, because it would be inappropriate. In the vast majority of cases, prosecutions in England are a matter for the police. There is a problem whether all police prosecutions should be sent to the Director of Public Prosecutions. We do not 344 need to examine English models. A Scottish solution must be found by tailoring a system that is appropriate for Scottish problems and sensitivities.
New clause 21 is modest in content. Although it is technically flawed, because it has been taken from a bill that was drafted by the Scottish Office a few years ago, it has, in the interests of not filling the Amendment Paper with a new clause the size of the Encyclopedia Britannica, been truncated. Many important technical points may have been overlooked. Those omissions could be put right in the other place. The important point now is to discover whether the principle finds any favour with the Minister, rather than worrying about the details of the proposal. I believe that the principle is good. The Minister should tell the House unambiguously that he is in favour of having some form of independent surveillance and an independent element within the police complaints procedure. That must be right, and it would be reassuring for the public.
I have met many people who say that, at the end of the day, substantial complaints are often shrugged off by the police because of sheer group loyalty and because of the way in which complaints arise. I wish to see that position changed. People think that their complaints are not taken seriously by investigating officers. I do not, as a generality, subscribe to that view, but, in matters of public confidence, what is seen to be the position from the public's view is important. The House must go a long way to reassure the public and to establish the credibility of the system.
Being a constituency Member of Parliament, periodically someone will come to me to complain about police harassment, discourtesy and improper use of authority, such as constant searchings of property and persons. If the complaints are genuinely thought to be serious and there is general resentment by the people involved, there should be some form of investigatory machinery that is above reproach and can be called into effect to attempt to deal with the position and to restore confidence in police administration.
The position may be that the superintendent, or whoever is asked to look into the complaint, puts his best foot forward and tries extremely hard to get to the bottom of the problem. There is a genuine investigation. He may fail to get to the bottom of some cases because there is nothing to get to the bottom of and the entire affair is touched with fantasy or malice. Conversely, there just may not be any evidence. The position may be that, even with the most independent and high-powered investigatory machinery that man can devise, an unsatisfactory position will remain. I fully concede that.
In the present position, when a police officer investigates a complaint, he reports to his superiors and then there is a brief intimation that no action has been taken. That often leaves a feeling that justice has been skipped and the issue has not been given sufficient attention. That may be an unfair impression, but it is dangerous, and the House should try to remove it.
If Scotland went for the solution in new clause 21, the procurator fiscal, who would establish whether there was a prima facie offence or the possibility of a criminal offence, would be the independent element. The Police Complaints Panel would provide a similar independent element at the other end of the scale by investigating and dealing with disciplinary and alleged malpractice 345 offences, as distinct from the more serious criminal matters. A balancing and complementing provision would be added to the system.
Such an addition would be widely welcomed and would not threaten the police. In the longer term it would be in the interests of the police, because it would make the system more creditable and more acceptable. I place those ideas before the House in the form of the new clause. I trust that the Minister and other hon. Members who participate in the debate will have something sympathetic to say about the principle and the ideas. The proposal is modest. I am realistic about the difficulties, with time running out for the passage of the Bill. Perhaps the best that can be obtained is an expression of good will and a promise to examine the position more seriously in the aftermath of the consultative document to which I referred.
New clause 21 is a useful contribution to the debate. There is a ritual in the House that a controversial Bill must not be given a quick passage, even at this late stage. The Government have introduced Scottish business into this largely English measure as a convenient method of airing an important matter of public concern and putting forward a useful and sensitive reform.
§ Mr. Gordon Wilson (Dundee, East)
I wish, at this late hour, to say a few words about the new clause moved by the hon. Member for Glasgow, Garscadden (Mr. Dewar). It is an utter disgrace that the Goverment should try to mix up the reform of the law of Scotland in an English measure. Despite the fact that a controversial clause was removed from the Bill because of certain action, there is no doubt that we should endeavour to keep Scottish measures separate from English measures.
It is a bad principle that the Government, in this substantial and controversial Bill, should seek to bring in Scottish items of business. That does not exempt the hon. Member for Garscadden from the same criticism. It may be an excuse that he has sought to bring up the subject for debate and hang it on an English hook, but those of us here after midnight tend to regard it as an exercise in masochism as well as a debate in the public interest. I assume that we are here for the second reason as well as for the first.
I am impressed by the draftsmanship of the hon. Member for Garscadden, if for no other reason than that the length of the new clause showed that he had done a considerable amount of work on the subject. I see that the hon. Gentleman is disappearing. However, he did say that the copyright belonged to the Scottish Office. That is a bad example for draftsmanship.
The hon. Gentleman's speech was useful because it focused attention on an area of public concern and debate. There is no doubt that the police occupy a valuable role in our society. They perform a job that many of us would not wish to do—it can be unsavoury and messy—but they keep law and order. It is a job of authority. They come into contact with members of the public. From time to time their relationships with members of the public, including non-criminal members, can be abrasive and there can be irritations and problems.
I sometimes think that there are occasions when, because of the nature of the job that the police do and the provocation that they sometimes face, they can over-react to certain circumstances. As we know from professional 346 practice, members of the public who may not have had any previous experience of the police, sometimes end up feeling aggrieved about what has happened.
We have all received complaints from the public about the police. In the first instance, we would usually write to the chief constable. If it turns out that there is a case pending, either against the individuals concerned or against the police officers, we are, to put it bluntly, fobbed off and advised to await the outcome of the case.
Scotland has the procurator fiscal service, which is a great advantage. In many instances it has tended to take prosecution decisions away from the police and to place them in the hands of an independent official. This can reduce some of the suspicions that members of the public may have about the behaviour of the police and their ability to cover up entirely or to bring charges to bear which an independent official might not consider necessary but which a policeman, perhaps in the heat of the moment, might consider to be an appropriate way of dealing with the matter in hand.
The procurator fiscal system serves a useful purpose. I was interested to read a new clause that included a requirement for Crown prosecutors in England. It is not for Scottish Members to discuss that new clause. We shall leave it to our friends from the south to while away the hours of the morning while the rest of us go home to bed.
§ Mr. Wilson
In that event, our friends from the south may have the chance to go to bed, too, if the numerous amendments are carried through with expedition.
There are cases of improper behaviour. When these occur it might be in the best interests of the police if the complaints are seen to be dealt with fairly with the attendance of a lay observer. In many professions, where disciplinary action might be possible, under a charter of incorporation, or whatever the standard might be, there is provision for lay representation. Parliament has considered that to be appropriate. Lay persons, for example, are involved in the complaints procedure for solicitors, so the general public see that the Law Society of Scotland is not able to sweep its problems under the carpet. An individual who does not have a vested interest, is present to represent the public interest.
During the 1970s, when the Labour Government were in office, the police strongly opposed the concept that there should be a police complaints panel with lay representation, and that the system of discipline should, to some extent, be taken away from the chief constable. My impression is that if the police had a system of lay representation, their reputation with the general public would be enhanced. The police are in a position of authority. Although the public frequently welcome the attention of the police in dealing with urgent calls or when giving support, they feel that individual police officers can occasionally step out of line and adopt a bully-boy or abrasive approach. That can happen if individual police officers have not been feeling well on the day in question.
In American jurisprudence there is the realist school, which was developed in the 1920s and 1930s. It believes that law is a matter not so much of principle as of the judgments at which the courts arrive. It further developed the theory that the decision of the judge can change 347 according to whether a meal agrees or disagrees with him. The Americans, with great delicacy, describe that as digestive jurisprudence. When our own rhythms are not working properly, there are displays of bad temper across the Floor of the House. Similar patterns of behaviour can manifest themselves from time to time within the police force.
If individual police officers were brought before the chief constable for disciplinary action and there were a complaints panel with lay representation, I feel that that would ensure fairness. I sometimes feel that chief constables, who are anxious to protect the good name of the police force, can be hard on individual policemen. It is well known, too, that procurators fiscal will bring cases against policemen, which they would not always bring against members of the public, because they feel they have to show that they are fair and that everything is above board.
The proposal of the hon. Member for Garscadden that there should be a panel to oversee and be present in certain cases raises the problems of proof and corroboration. Major matters of discipline would probably result in a criminal charge. If there is a criminal charge, the burden of proof is high. Since I have not been involved, I do not know what the standard of proof is in disciplinary proceedings which chief constables conduct within their own forces. I do not know whether the Minister can help us.
§ Mr. Dewar
The hon. Gentleman has made an interesting point. The Minister may be able to comment on the standard of proof required in disciplinary proceedings. The very fact that the hon. Gentleman has had to ask the question is an eloquent argument for saying that the present system is too cloistered and secret. The body proposed in the new clause would at least open the doors and the methodology of disciplinary proceedings to public scrutiny, which would be healthy.
§ Mr. Wilson
I am grateful to the hon. Gentleman for his support on that point. My ignorance of the burden of proof is substantial. It would be interesting to know whether there are two standards—one which procurators fiscal have to present in court to satisfy the sheriff and another which has to satisfy chief constables.
Like the hon. Member for Garscadden, in the days when I practised in the courts I came across cases where people were loth to make complaints against the police if they felt that, in the absence of corroboration, they could not prove their cases. Some people felt that if they put up a case which could not be substantiated, they might lose the sympathy of the sheriff, because the accusation might appear to be wild. If they had the chance to ensure that the complaint was dealt with later openly in disciplinary proceedings before the chief constable, some of the frustration which I encountered occasionally might vanish.
The proposal of the hon. Member for Garscadden is interesting. I doubt whether the Government will accept it, particularly as consultation has been involved. Governments like to do these things on their own initiative. It would be interesting during this break, which enables the shadow Home Office team to go for coffee and bacon sandwiches, for us to hear the Minister's attitude to 348 a proposal which will come before the House again during the next five years and which cannot be put off for too long.
§ Mr. George Robertson
I am grateful to my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) for tabling the new clause. The debate may be short. As the hon. Member for Dundee, East (Mr. Wilson) has said, other hon. Members who are here compulsorily or voluntarily have taken the opportunity of the natural break in the proceedings to have something to eat.
This is an important subject, which has been discussed at length in Scotland over the years.
I confess to some admiration for the British police force, which is not a fashionable confession to make in some quarters. We have much of which to be proud and, without being complacent, we can take comfort from the excellent police-public relations which exist in Scotland and which many of us know well. My confession of some admiration comes partly because I have a considerable family tradition in the police. My brother is a serving officer in the Metropolitan police, my father was an inspector in the Strathclyde police and my grandfather was an inspector in the Argyllshire constabulary in the days before regionalisation took away the romance from the names of the Scottish police forces.
Being involved with politics, I was regarded as the black sheep of the family. I was partly able to redeem myself when my right hon. Friend the Member for Glasgow, Craigton (Mr. Milian) appointed me for three years to the Police Advisory Board for Scotland, which I served, and I was on the board of governors of the Scottish police college. Some of my admiration comes from the close contact I had with police officers and police representative organisations during that time.
But my admiration for the British police comes mainly from my beliefs as a Socialist. That may sound strange even at this hour and I feel bound to explain why my Socialist beliefs give me such an affection for our police. The first reason is that the police force is the only institution bar none in Britain to which entry is at the lowest level alone, from which all senior levels of serving officers must have come—the pulling-on-padlocks beat constable—and nobody serves in the British police force at whatever rank without having started at the bottom. In the class-ridden society which we inhabit, there is not another institution of any type where entry starts and promotion is from that level. While that is a source of strength to the police, in its pure meritocracy lies perhaps also the roots of certain public attacks on the force.
The second reason for pride is the accountability of the police force. Many people make a great issue of police accountability—and in certain areas I subscribe to their concern and would wish to increase accountability—but let us realise that accountability in Britain is greater than in most modern police forces in the world; and it is accountability not just to the Home Secretary in respect of the Metropolitan force but, in the bulk of the country, to elected local representatives.
Many of my hon. Friends who make proper criticism of English systems of accountability forget that, in Scotland, only elected councillors are responsible for the police forces; there are no magistrates and no non-elected members of police authorities. Far from there being any of the traumatic consequences which are sometimes used by Conservative Members to illustrate the impact of 349 changes in the process of police accountability, the harmony which exists in all police authorities in Scotland should be looked at with interest by those who express strong views one way or the other. That generalisation applies to all police authorities, from those which have a strong Leftward feel to those which have taken a traditionally Conservative view. Political interference has never been a problem in Scotland, yet we have a form of accountability that is regarded by some south of the border as a dangerous manoeuvre to bring politics into the police.
Accountability is also important in the Scottish police forces because elected members take their reponsibilities seriously not only in terms of general accountability but with regard to disciplinary procedures. The chairman of the police committee of the Strathclyde region is a constituent of mine, a councillor from my area and, perhaps more importantly, a member of the general committee of the Hamilton constituency Labour party—another form of accountability. The Strathclyde regional police authority is the largest in Britain outside London and has considerable responsibility. The chairman of the police committee, Councillor James Irvine, speaking to me today, made it clear that he takes his responsibilities for discipline seriously.
My third reason for believing that we should have a genuine admiration for the police is that, even in this day and age and even with all the day-to-day exceptions that must occur, the force is generally unarmed. Anyone who travels the world and sees other police forces with junior officers parading the airport terminals with machine pistols and machine guns breathes a sigh of relief on return to our shores to see an unarmed police force still in command of law and order in this country.
In that brief preamble to my comments, I hope I have shown some credentials in this area and have demonstrated that my clear-cut and long-standing support for an independent element in the complaints procedure is not motivated by a sense of prejudice and is not seen, to use the words of the representative at the Scottish Police Federation conference, as a means of public appeasement of forces critical of the police.
Over recent years there has been considerable evidence to hold up in favour of an independent element in the police complaints procedure. An independent element exists in the police complaints procedure south of the border which has apparently worked effectively and no attempt has been made by the present Government, whatever their propensities in other directions, to change that independent element. Their concern now is to find a means to strengthen the independent element in the police complaints procedure. We also have the evidence to and the report of the Home Affairs Committee, which gave serious consideration to this matter. Although its main recommendations were concerned with introducing a further strengthening of the police complaints procedure in England and Wales, it concerned itself with the system that applies in Scotland and modelled its principal recommendations not only on the police complaints procedure in Scotland but on the system of Crown prosecution in Scotland as a whole.
What is amazing is the Committee's conclusion that there is no pressing need for change in Scotland. The Committee said: 350Legislation to establish a complaints panel was introduced by the previous Government but failed to make the necessary progress through Parliament, and our Scottish witnesses could not point to any pressing need for such a change.Yet the evidence it deploys in support of its arguments in other areas shows that the need for an independent element in the police should be considered, and not simply on a geographical basis, confined to areas south of Carlisle and Gretna Green.
Paragraph 7 of the report states:The Police Complaints Board in their Triennial Review expressed themselves satisfied that, in the vast majority of cases, 'a thorough and fair investigation has been made by the police into the complainant's allegations, and though this may not reveal the whole truth it will nevertheless provide all available evidence on which to make a proper adjudication.'Paragraph 8 states:Few of our witnesses contended strongly that independent investigation would necessarily be more effective in terms of its eventual results; but it was generally conceded, even by representatives of the police associations, that some changes were needed to restore public confidence".If that is not a clear commendation of the generality of the principle, I do not know what is. It is not only the Home Affairs Committee that can be deployed to argue the case. Lord Scarman reported on the Brixton disorders that took place two years ago. His credentials are impeccable and his summary of the causes of the riots is now regarded as authoritative. Indeed, Lord Scarman's report has the distinction of changing from being a very expensive £8 per copy Government White Paper into being a very cheap and best-selling paperback. Its popularity is not confined to the salaciousness of its contents, but is due in part to the authoritative nature of the analysis and recommendations.
In paragraph 7.20, Lord Scarman said that in its triennial review reportthe Police Complaints Board expressed themselves satisfied that 'in the vast majority of cases which come before them, a thorough and fair investigation has been made by the police into the complainant's allegations'. The Board is uniquely placed to judge the quality of police investigations and its findings on this matter must be given considerable weight. I conclude that the decision whether to establish a new procedure for the independent investigation of complaints must rest on a judgment whether the gain in public confidence which would ensue outweighs the resource and financial costs involved.Thus Lord Scarman had seen only "resource and financial costs" as arguments to be deployed against the independent investigation of complaints.
In paragraph 7.21, Lord Scarman concluded:My own view is that if public confidence in the complaints procedure is to be achieved any solution falling short of a system of independent investigation available for all complaints (other than the frivolous) which are not withdrawn, is unlikely to be successful. Any such system should include a 'conciliation process.'The fact that Lord Scarman was discussing the traumatic events of Brixton and the exceptional circumstances of that area, and of other inner city areas, which led to the riots of two years ago does not mean that the general principle involved was ignored.
In recent years, Scotland has not seen any riots occasioned by the ethnic minorities, or others, but it is the principle that is being argued in the report. We should be aware of that principle if we are to protect the Scottish community from such riots and from the pressures on the police that may flow as a result. The evidence produced by the Home Affairs Committee included a document from the Scottish Home and Health Department. It appears in other guises, and my hon. Friend the Member for 351 Garscadden has already quoted some of it in saying why the Government do not want to become involved in introducing that independent element at this stage.
Paragraph 12 of the Scottish Home and Health Department's evidence outlines four basic reasons why the Secretary of State has concluded that there should not be this independent element. Item (c) states:there is little or no evidence of any widespread public concern on the matter in Scotland or of any feeling that the police do not deal properly and thoroughly with complaints under existing procedures".A reading of the evidence following the questioning of the officials of the Scottish Home and Health Department produces considerable scepticism about these assertions, especially from the Scottish Council for Civil Liberties and other organisations which do not necessarily question the assertion that there is no great public demand but which properly made the reservations and caveats that the statistics themselves may not tell the whole story and that any conclusion derived from the statistics alone may not be the best solution for dealing with police complaints in Scotland.
These statistics can produce a variety of conclusions. The inevitable under-recording is occasioned by the frailty of the very human beings involved. As both hon. Members have said, every hon. Member deals with people who have a serious grievance against the police but who, because of a deferential view of the police and authority in general, never take such complaints further in the system even though they retain that grievance against the police. However small the number, the principle is the same.
On top of the existing system of the Police Complaints Board south of the border, the Select Committee on Home Affairs recommended an additional Crown prosecution system that would take over the role of the procurator fiscal. People dissatisfied with the present police complaints system have a disproportionate impact on the public perception of the police. The Police Complaints Board, which both the Select Committee and Lord Scarman have quoted, said that the procedures adopted by the police in an investigation were satisfactory. They probably are, but the fact that the Police Complaints Board said so, could say so and is continually quoted as having said so, also matters in persuading public opinion whether it is prejudiced or sympathetic to the police.
A complaints procedure as proposed in the new clause would not weaken the standing of the police but would strengthen it by removing that residual resentment that hangs behind in a case when a decision has been made internally but no explanation has or can be offered. It provides a means of persuading the sceptic, the hostile or even the simply puzzled that the process has not been a whitewash. In doing so, the reputation of the Scottish police, who have nothing to lose or hide, will be enhanced.
In acting in Scotland before we have a problem, be it of class, as we had in the 1930s, or race, as we have in certain English urban areas, or religions, as we so tragically have in Northern Ireland, we may prevent the erosion, however slight it may be, in the reputation of the police that has precipitated the need for these present proposals in England and Wales.
352 The proposals in the new clause represent a minor, but important, reform which I believe that the police and the friends of the police in the community should warmly welcome.
§ The Under-Secretary of State for Scotland (Mr. Allan Stewart)
We have been discussing an important subject and, as the hon. Member for Glasgow, Gascadden (Mr. Dewar) said, it is a sensitive topic. The three hon. Members who have spoken have recognised that there are excellent relations between the police and the public in Scotland, and we all place immense value on that.
Hon. Members have paid justified tributes to the Scottish police force, and I agree with the hon. Member for Garscadden that this is a timeous debate against the background of the consultative document. The hon. Member said that the Bill has a considerable history. It is substantially the same as that introduced by the Labour Government in 1976. I make no partisan point, but it would have been helpful if hon. Members had been able to tell us why the Labour Government did not proceed with that Bill, not only in 1976, but in 1977, 1978 or 1979. One must conclude that the then Government did not feel that the case was strong enough to go ahead with Bill.
§ Mr. Dewar
I was not a party to the decision, but I have had the advantage of discussing the matter with my right hon. Friend the Member for Glasgow, Craigton (Mr. Milian) and there is no doubt about his commitment to the Bill. Every Minister has difficulties with the legislative timetable. Perhaps I might delicately remind the Under-Secretary that the Labour Bill was introduced at about the time of the Scottish Devolution Bill, which occupied a certain amount of parliamentary time. Perhaps the Minister will take it from me that the new clause was tabled by the official Opposition, and we think that it is a good idea which is worth pursuing.
§ Mr. Stewart
I do not dispute what the hon. Gentleman says, but the Bill introduced by the Labour Government was not proceeded with over a period of three or four years.
The hon. Member for Garscadden outlined the salient features of the present complaints procedure in Scotland and the distinction between complaints from which it may reasonably be inferred that a disciplinary offence has been committed and those from which a criminal offence may be inferred.
In disciplinary cases, the procedures are broadly similar to those in England and Wales, without, of course, the involvement of the Police Complaints Board. For complaints from which a criminal offence may be inferred, different procedures apply, and it should be emphasised that such complaints must be referred to the regional procurator fiscal.
Once the deputy chief constable has referred a case to the regional procurator fiscal, the fiscal will investigate the complaint, either personally or by instructing the procurator fiscal for the district concerned to investigate and report to him. Thus, the regional procurator fiscal supervises and controls the Crown investigation. He will normally take statements from all concerned and make his own independent assessment of the case. If he considers that there is any substance in the complaint, he will send an assessment—a precognition—to the Crown Office so 353 that the question of prosecution can be decided by Crown counsel. Crown counsel will recommend to my hon. and learned Friend the Solicitor-General for Scotland his view of the case, and my hon. and learned Friend will finally determine whether a prosecution is to be brought.
As hon. Members have confirmed, there is already provision for a completely independent, impartial and important investigation of criminal complaints. On average, about 45 per cent. of all complaints dealt with are of a criminal character. Just under half of all such complaints are already dealt with under the independent aegis of the procurator fiscal service.
The hon. Member for Hamilton (Mr. Robertson) concentrated on the Select Committee on Home Affairs investigation last year into the complaints procedures. As he said, that investigation concentrated mainly on the system in England and Wales, but he accurately quoted the evidence that the Committee took from Scottish witnesses. The Committee made a fair commendation of the existing Scottish system, and the House will wish to bear that in mind in assessing the new clause.
§ Mr. Gordon Wilson
Would the result have been the same if the Select Committee on Scottish Affairs had considered the matter? The Minister quoted with approval the fact that 45 per cent. of complaints were dealt with by way of criminal proceedings. That would leave 55 per cent. of the cases not subject to independent scrutiny.
§ Mr. Stewart
The statistical point is correct; but I cannot answer the hon. Gentleman's hypothetical question about what the Select Committee on Scottish Affairs might have concluded, although there is widespread public support for the present system.
§ Mr. George Robertson
The Select Committee's conclusion—adding a layer similar to the procurators fiscal in Scotland — was in addition to the Police Complaints Board which already exists in England and Wales. The ideal solution was a Police Complaints Board dealing with the non-criminal element and in addition a procurator fiscal-type prosecutor system. It did not suggest that the non-criminal independent element should be taken out of the system.
§ Mr. Stewart
I do not think the Home Affairs Committee came up with any conclusive evidence in favour of the kind of additional structure that the new clause puts forward.
I listened with great care to the point made by the hon. Member for Garscadden on the consultation document. We have not reached conclusions on that, and the points that all hon. Members have made on that have been put timeously and listened to carefully.
The Government believe that there is a need for a Police Complaints Board in England, but not for the kind of structure proposed by the hon. Member for Garscadden in Scotland. First, as all hon. Members have recognised, Scotland has the unique procurator fiscal system to which all complaints of a criminal nature are referred. Secondly, the number of complaints in Scotland pro rata is substantially less than in England and Wales. Thirdly—this is important—Scotland has no substantial problem of relations between ethnic minority communities and the police. Fourthly, neither the Home Affairs Committee nor the public generally have seen fit to recommend the need for one.
354 There is not sufficient evidence that a complaints board is necessary, or that there is a public demand for it. That is not a message of complacency. I take seriously the points that hon. Members have made about the present procedures. We shall consider them carefully in the current consultations with a variety of people and organisations in response to the consultation document.
§ Mr. Dewar
I have listened to the Minister, and, as always, he has been courteous. However, he is often disappointing, not in his personal qualities but in the message that he has to give to the House. I recognise that it is too late and that we have held the floor for getting on for an hour and a half now, but this is a subject of some importance.
I felt that the Minister did not give full justice to the range of arguments that were advanced by my hon. Friend the Member for Hamilton (Mr. Robertson), who gave a considered and weighty speech, and by the hon. Member for Dundee, East (Mr. Wilson). The latter made a simple but important arithmetical point, when he pointed out that, even on the Minister's figures, 55 per cent. of the cases arising from police complaints are not subject to any form of independent scrutiny. We have repeatedly said that we do not suggest that there is a widespread abuse of the system or a conspiracy to go easy on investigations, but —it is a cliché in politics—justice must be seen to be done and an independent element would go some way to reassure the public.
This has been a worthwhile debate, as the Minister said. Indeed, he used the word "timeous". As there is a consultative document out and the Minister has not yet made up his mind, I think that I should seek leave to withdraw the motion but to put down a clear marker that we shall return to these arguments in future. I hope that the Minister will not take withdrawal of the motion as a demonstration of only luke-warm support for the principles on the Labour Benches or an acceptance of the Minister's insipid status quo arguments which, despite his protestations, bordered on complacency.
With the warning that this is merely a foretaste of other debates on this subject, when we shall be pressing the Minister a great deal harder than we have done tonight, I beg to ask leave to withdraw the motion.
§ Motion and clause, by leave, withdrawn.