Undercover Policing

– in the Scottish Parliament on 7th February 2018.

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Photo of Kenneth Macintosh Kenneth Macintosh Labour

The next item of business is a statement by Michael Matheson, the Cabinet Secretary for Justice, on a strategic review of undercover policing by Her Majesty’s inspectorate of constabulary for Scotland. The cabinet secretary will take questions at the end of his statement.

Photo of Michael Matheson Michael Matheson Scottish National Party

Before I turn to undercover policing, I would like to update members on recent policing developments. As members will be aware, Phil Gormley has today tendered his resignation from the post of chief constable and will leave Police Scotland with immediate effect. I respect the decision of the chief constable and hope that it enables policing in Scotland to move forward with a clear focus on delivering the long-term policing 2026 strategy, which Phil Gormley helped to develop. Although the management of the police service has been the subject of close scrutiny in recent months, I would like to pay tribute to all those officers who have continued to serve the people of Scotland every day, helping to keep crime at historically low levels and making our communities safer.

I have spoken to Susan Deacon, the chair of the Scottish Police Authority, which will undertake the process for appointing a new chief constable. Professor Deacon informed me yesterday that the SPA was in discussions with the chief constable’s representatives regarding his future, and she provided assurance that the appropriate processes were being followed. Going forward, I am encouraged by the commitment that she has made to improving the robustness of decision making in the SPA.

Today, I laid before Parliament the HMICS report on undercover policing, “Strategic Review of Undercover Policing in Scotland”. I thank HMICS for that strategic review, which I directed in September 2016 to be undertaken. The report makes 19 recommendations, and Police Scotland has undertaken to implement them all. I received HMICS’s report on 2 November and have taken my time to consider carefully all that it has to say. Members may be aware of the on-going judicial review into the matters concerned, which has also had a bearing on the time that I have taken to consider the report.

The report says:

“The use of undercover officers is a legitimate policing tactic and has been used effectively in Scotland. Operational activity has primarily focused on drug related offences, child sexual abuse and exploitation, human trafficking and exploitation and serious organised crime.”

The report makes it clear that, since 2000, the use of the undercover policing tactic has not been widespread in Scotland and states that

“the number of undercover deployments by Scottish policing lead us to the conclusion that the use of undercover policing in Scotland cannot be considered to be widespread. Indeed, we believe that undercover advanced officers and undercover online officers has been underutilised.”

The report also notes that

“there was no evidence that undercover advanced officers ... from Police Scotland had infiltrated social justice campaigns or that officers had operated outwith the parameters of the authorisation.”

Members will be aware of the undercover policing inquiry—the UCPI—that is taking place in England and Wales. Its stated purpose is

“to investigate and report on undercover police operations conducted by English and Welsh police forces in England and Wales since 1968”,

including the full scope of undercover policing, the work of the special demonstration squad—the SDS—and the national public order intelligence unit, the NPOIU.

A number of issues led to the instigation in 2014 of the inquiry by the then Home Secretary. Mark Kennedy, a former Metropolitan Police officer who was attached to the NPOIU, had infiltrated protest groups between 2003 and 2010. In 2011, a

Guardian article claimed that undercover officers routinely adopted a tactic of promiscuity. We have heard in previous debates in the chamber about undercover officers having long-term relationships with members of the groups they had infiltrated. In 2012, Theresa May appointed Mark Ellison QC to carry out a review of the police investigation into the murder of Stephen Lawrence for the purpose of examining allegations, which were reported in the media, that the investigation had been tainted by corruption. In 2014, Theresa May told the House of Commons that the findings of Mark Ellison and of operation Herne, which was a review of the SDS, had persuaded her of the need for a judge-led public inquiry into undercover policing.

The accumulation of revelations of highly questionable and unethical behaviours eventually led to the establishment of the undercover policing inquiry. They all relate to English police forces that fall within the ultimate responsibility of the Home Secretary.

Despite the evidence that the SDS and the NPOIU had been active in Scotland, the terms of reference for the undercover policing inquiry did not and do not extend to Scotland. I wrote on a number of occasions to Theresa May and Amber Rudd stating that I was disappointed that the terms of reference for the inquiry would not be extended to allow it to consider the evidence of those English and Welsh units’ activity in Scotland. In her letter of January 2016, Theresa May wrote of the inquiry:

“They are interested in the whole story and are bound to encourage those coming forward to provide a complete picture when submitting their evidence.”

Despite that response, neither Mrs May nor her successor saw fit to amend the terms of reference in order to allow that “whole story” to be considered.

The HMICS report confirms that undercover officers from the SDS and the NPOIU were active in Scotland. However, this activity was, as we understand it, not standalone and not self-contained within Scotland, nor did it have any particular Scottish focus. Nothing set it aside as something distinctive from the units’ activities that were being considered by the undercover policing inquiry.

Those undercover units’ officers required to be authorised. The HMICS review confirms that, with the exception of a number of authorisations made around the G8, they were authorised under the Regulation of Investigatory Powers Act 2000. That is the appropriate statute for the authorisation of activity by law enforcement bodies in England and Wales. The review comments that a number of G8 authorisations were dual authorised under RIPA and the Regulation of Investigatory Powers (Scotland) Act 2000. My understanding is that that was seen as a belt-and-braces approach and that the RIPSA authorisations, which were made by Tayside Police, were effectively a subset of the wider RIPA authorisations. Those authorisations would have been subject to oversight at the time by the Office of Surveillance Commissioners.

RIPA allows for authorised activity to cross the border north into Scotland, but it does so with one important caveat: it can do so only as long as not all the activity authorised takes place in Scotland. In simple terms, the activity of the English and Welsh undercover officers in Scotland was authorised as part of an operation that began, or mainly took place, south of the border.

In 2005, SDS and NPOIU officers were deployed in support of the Scottish police operation for the G8 summit at Gleneagles. The HMICS review states:

“The SDS, the NPOIU and other deployments of undercover officers at the G8 Summit were undertaken with the full knowledge, co-operation and authorisation of Tayside Police. Outwith the policing of the G8 summit, the undercover deployments by the SDS and the NPOIU to Scotland were the responsibility of the SDS and NPOIU.”

The report makes clear that, outwith the G8, Scottish police forces were unsighted on SDS and NPOIU operations in Scotland.

I welcome the HMICS recommendation that Police Scotland should, in partnership with the relevant United Kingdom bodies, establish a formal process for the reciprocal notification of cross-border undercover operations.

Members in this chamber and others have called on the Scottish Government to establish a Scottish inquiry. Both the Scottish and UK Governments are currently subject to a judicial review relating to the undercover policing inquiry. The case is currently in court, so I cannot go into detail about it, but the basis of it is a matter of public record. It challenges the UK Government on its decision not to extend the undercover policing inquiry to cover Scotland and it challenges the Scottish Government because we have not held an inquiry under the Inquiries Act 2005 with similar terms of reference in Scotland.

The HMICS strategic review was always going to be instrumental in informing my decision on how to respond to calls for a separate Scottish inquiry. We have seen no evidence of the sort of behaviour by Scottish police forces that led to the establishment of the undercover policing inquiry.

The HMICS review provides reassurance to the public and to the Parliament around the extent and scale of the use of undercover police officers since 2000, identifies room for improvement and makes a number of recommendations that Police Scotland has committed to implement in full.

I have considered carefully whether I should establish a separate Scottish inquiry under the Inquiries Act 2005. Given all the circumstances, I am not satisfied that establishing a separate inquiry is necessary or in the public interest.

There is some legitimate public concern around undercover policing activity in Scotland and I have had regard to that concern in reaching a decision on this matter. However, on balance, I consider that establishing a Scottish inquiry, under the 2005 act, into undercover policing is not necessary or justified. The factors that have led me to that view include the lack of evidence of any systemic failings within undercover policing in Scotland.

In light of the limited scale of the activities of SDS and NPOIU police officers in Scotland, I believe that setting up a further inquiry would not be a proportionate response. I believe that such an inquiry would inevitably create a measure of duplication with the undercover policing inquiry by involving many of the same core participants and law enforcement officers, and that it would have the potential to overlap with that inquiry in its conclusions and remedies. It could, because of the scale and duration of the undercover policing inquiry, be subject to potential delay in obtaining Metropolitan Police service participation and documentation, and it would be disproportionate in terms of cost.

Responsibility for the actions of English and Welsh police units sits with the UK Government, London’s deputy mayor for policing and crime, and the relevant chief officers.

The Scottish Government’s position remains that the clearest and most effective way of addressing concerns about what might have happened in Scotland as a result of actions of English and Welsh police officers is for the terms of reference of the undercover policing inquiry to be amended to allow it to look at the activity of English and Welsh police operations that took place across Great Britain.

Accordingly, I have today written again to the Home Secretary to ask her to reconsider the terms of reference. I have provided her with a copy of HMICS’s strategic review.

I assure the Parliament that any recommendations that arise from the undercover policing inquiry will be considered and, where appropriate and necessary, implemented in Scotland.

I have every sympathy for individuals if they have suffered due to the actions of undercover police officers who have behaved in ways that are entirely unethical and unacceptable. However, on the basis of the evidence that we have, I am clear that such behaviour by police officers in English and Welsh units is properly a matter for the Home Secretary and that the most effective way for the undercover policing inquiry to see the “whole story” and “complete picture” to which the current Prime Minister referred is for the inquiry to be allowed to consider all the relevant evidence.

The Presiding Officer:

I draw members’ attention to a couple of points. The cabinet secretary referred to the on-going judicial review in relation to the independent inquiry into undercover policing. I have received advice on that and I have reached the view that the sub judice rule does not apply. I will, therefore, allow questions on the issues that the cabinet secretary raised in his statement.

I am conscious that members have a greater level of interest in the statement following the cabinet secretary’s points about the chief constable’s resignation. I will allow some additional time to accommodate members.

Photo of Neil Findlay Neil Findlay Labour

On a point of order, Presiding Officer.

In his statement, the cabinet secretary said that he would not comment on the case that is in court. Will time now be allowed for him to comment on that case?

The Presiding Officer:

Members are at liberty to ask questions and the cabinet secretary himself can decide how to respond appropriately to those questions.

Photo of Liam Kerr Liam Kerr Conservative

I thank the cabinet secretary for advance sight of his statement, and I thank HMICS for carrying out its important review, which my party supported.

It is vital that undercover policing is carried out in a proportionate, authorised and lawful manner, and it is important that we recognise the report’s finding that undercover policing is not widespread and has been carried out within the law; it is a legitimate tactic, which has led to the arrest of many serious criminals.

With that in mind, and given the report’s comment about Police Scotland’s lack of capacity in relation to serious organised crime and online safety, what work is being done to address that lack of capacity?

In relation to recommendation 19, when does the cabinet secretary expect

“a formal process for the reciprocal notification of cross border undercover operations” to be put in place? Can he explain why such a process is not already in place and say what discussions he is having with the UK Government policing minister on the matter?

Finally, on the chief constable’s resignation, Mr Gormley has said that it was the events of and since November last year, when the cabinet secretary interfered in the SPA’s operational decision, that made it impossible for him to continue. Does the cabinet secretary acknowledge his part in the decision, and will he finally do the decent thing and follow the former chief constable out of the door?

Photo of Michael Matheson Michael Matheson Scottish National Party

On Mr Kerr’s final question, I will leave him to his amateur politics around the issue while I deal with the serious politics, but it is seriously misleading to misinterpret someone’s statement in that way.

On Mr Kerr’s more substantive and reasonable points about the lack of capacity in advanced undercover policing in serious and organised crime and online matters, the member will appreciate that those are entirely operational matters for Police Scotland. Instead of there being direction by ministers, it is entirely a matter for the chief constable to determine how those issues are taken forward. The report demonstrates a need for Police Scotland to look at the issues, and it has already accepted the report’s 19 recommendations and put in place a steering group to consider them all.

As for cross-border matters, one would have preferred to have had a cross-border arrangement in previous years. However, the matter is covered by two distinct legislative elements and Police Scotland is now pursuing it with the relevant law enforcement bodies in the rest of the UK to seek to put an appropriate mechanism in place. I will consider whether any representations need to be made to UK ministers to ensure that that particular recommendation is taken forward, but I have confidence in Police Scotland’s determination to work with other law enforcement bodies in other parts of the UK to get a mechanism in place. As changes will be required not only to Scottish legislation and codes of practice but to codes of practice for other parts of the UK, that is not something that we can do unilaterally in Scotland—it will have to be agreed across the whole of the UK. However, the recommendation is very practical and sensible and Police Scotland has given a commitment to taking it forward.

Photo of Daniel Johnson Daniel Johnson Labour

I thank the cabinet secretary for advance sight of his statement, but it is disappointing that he has chosen to conflate two important issues into a single statement this afternoon. I ask him to come back to this place to give us further time to discuss the leadership and governance of Police Scotland.

The officers involved in undercover policing deserve our thanks for voluntarily putting themselves in challenging and sometimes dangerous circumstances for the public good, and we welcome the review in so far as it provides a series of useful strategic recommendations on improving capacity and oversight of undercover policing. However, unanswered questions remain. Was there infiltration of social justice campaigns before the formation of Police Scotland? What about undercover activity before 2000? Finally, what has been the impact on those targeted by undercover policing and their friends and families, which has been such a large part of the controversy in England and Wales? In light of all that, why will the cabinet secretary not commit to an independent inquiry?

Turning to the chief constable’s resignation, I think that it is a sign of strength that our police officers continue to do their job diligently despite the shambles in the governance of Police Scotland. The cabinet secretary might want to draw a line under the issue after today’s resignation, but I note that the chief constable refers directly to the events of November 2017. Does the cabinet secretary concede that the events that Mr Gormley has referred to are his interventions and, if so, is he concerned that his actions might have prejudiced the chief constable’s return?

Photo of Michael Matheson Michael Matheson Scottish National Party

Let me first of all correct Daniel Johnson’s point about conflating two different issues. I suspect that if I had come in here and made a statement without referring to the chief constable’s resignation, people would have found it completely bizarre that I had ignored the issue. I am not trying to conflate two issues—I am merely making reference to a significant policing issue that arose today. [

Interruption

.]

The Presiding Officer:

Let us hear the cabinet secretary, please.

Photo of Michael Matheson Michael Matheson Scottish National Party

I confess that I find it rather bizarre that Daniel Johnson has suggested otherwise.

On the issues that Daniel Johnson attempted to raise, I acknowledge the legitimate public concern that has been expressed about undercover policing activities in Scotland. In my statement, I gave a very clear indication of the factors that I took into account in arriving at my decision on whether there should be an inquiry in Scotland: a lack of evidence of any systemic failings in undercover policing in Scotland; and the limited scale of the activity of SDS and NPOIU police officers in Scotland. I believe that such an inquiry would inevitably create duplication with the undercover policing inquiry in England and Wales, would involve many of the same core participants and law enforcement officers and would have the potential for its conclusions and remedies to overlap. It could be that, because of the scale and the duration of the UCPI, it would be subject to significant delay here in Scotland because of the need to obtain information from the Metropolitan Police Service and those participating in that process.

I am also very clear that the activities of police officers from England and Wales on those matters rest with the Home Secretary. It is clear from what I see in the HMICS report that the activities relating to the SDS and the NPOIU rest largely with UK-based operations that were authorised under their processes and should be considered as part of the undercover policing inquiry. If information becomes available that relates to Scotland, particularly in the course of the undercover police inquiry, I will, of course, give that full consideration and consider whether any further measures are necessary here in Scotland.

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

What impact does the cabinet secretary envisage the report will have on the future of undercover policing activities in Scotland?

Photo of Michael Matheson Michael Matheson Scottish National Party

The range of recommendations set out in the HMICS strategic review will help to strengthen how Police Scotland takes forward any undercover policing operations. Undercover policing is a legitimate tactic that can be used to deal with issues of public order, serious and organised crime, sexual exploitation and child abuse. It has a legitimate role in helping to tackle those serious forms of criminal activity. Equally, it is important that we have robust legislative processes around how it operates. That is exactly what the regulation of investigatory powers provisions and the new codes of practice that I have just taken through Parliament, at the Justice Committee last week, are for: to ensure that we have robust measures in place to deal with such issues and on the operational responsibility of Police Scotland in utilising those tactics.

The additional recommendations from HMICS will allow us to strengthen that process even further and will give even further assurance about how the police service in Scotland utilises that tactic.

Photo of Margaret Mitchell Margaret Mitchell Conservative

Regardless of the rights or wrongs of the complaints against Phil Gormley, this issue, and the cabinet secretary’s intervention into the SPA decision about the CC’s special leave have, at best, been handled appallingly. Will the cabinet secretary confirm whether he has replied to the letter of 28 November 2017 to him from Mr Gormley’s solicitors? If not, why not, and when does he intend to do so? If the cabinet secretary has responded, what did his response say?

The cabinet secretary has been in receipt of the report published today on undercover policing since 2 November 2017, which is some 14 weeks ago. Will he confirm whether he made any changes to the report’s content? If so, what changes were made?

Of the 50 undercover operations since the formation of Police Scotland in 2013, the report states:

“Operational activity has primarily focused”—

The Presiding Officer:

Mrs Mitchell, I am sorry, but you are asking too many questions. The cabinet secretary will answer your first two questions.

Photo of Michael Matheson Michael Matheson Scottish National Party

No changes have been made to the report. My understanding is that—as would normally be the process and the protocol for dealing with reports of this nature—the report will have been shared with Police Scotland for factual accuracy checking. There were no changes in it requested on my part.

I will deal with the other issue that the member raised about the former chief constable and the letter from his lawyers. My accountability on these matters is to this Parliament, and I have answered questions on the issue in this Parliament on a number of occasions.

Significant things have happened since November. I was very clear that the process that the SPA had in place had serious deficiencies. That is not just my view, but the view of the new chair of the Scottish Police Authority who, having reviewed the situation, has stated that she has found the process wanting in many, many ways, including: the fact that the Police Investigations and Review Commissioner was not consulted during a live investigation; the fact that no welfare arrangements were put in place for complainants within the organisation—we now know that that was the case; and the fact that, at the same time, Deputy Chief Constable Designate Iain Livingstone was not consulted or engaged in the planning around the process at all.

I have been very clear that there were serious deficiencies and that having such deficiencies in the process was unacceptable.

I am also conscious that two further complaints have been made since November, that there has been significant media and public commentary on the issue and that there has been intense interest in the complaints process.

I am clear that my actions in questioning the SPA on 9 November were entirely appropriate and, indeed, would have been expected of me. I have absolutely no doubt that if I had failed to ask basic questions about the process, the member would have harangued me time and again for not having done so. Those questions demonstrated the deficiencies in the process that have been identified by not only me but the new chair of the SPA.

Photo of Elaine Smith Elaine Smith Labour

On a point of order, Presiding Officer. Given that you said that extra time had been allocated to allow both issues to be dealt with, I would like to ask why, in his response to Daniel Johnson, the cabinet secretary did not address Mr Johnson’s question about the chief constable. Given that there now seem to be time constraints on questions, which is hardly surprising when two issues are being dealt with in one statement, would you be amenable to the cabinet secretary returning to the chamber to address the issues around the chief constable’s resignation?

The Presiding Officer:

I thank the member for her point of order, but it is not a point of order for the chair. The questions that she has asked are legitimate ones that she is entitled to ask. There are many parliamentary opportunities that all members can take advantage of—for example, they can lodge written questions and they can write to the Government. If the member wishes further parliamentary time to be allocated to the issue that she raises, that is a matter for her business manager to discuss through the Parliamentary Bureau.

I have allowed additional time, but I point out that, in the exchanges so far, the questions and the answers have been slightly too long. If we are to get through the questions that members wish to ask, I ask all members and the cabinet secretary to be a little more succinct.

Photo of Rona Mackay Rona Mackay Scottish National Party

What impact has the creation of Police Scotland had on undercover policing in Scotland?

Photo of Michael Matheson Michael Matheson Scottish National Party

As the HMICS report demonstrates, Police Scotland has sought to take a much more strategic and centralised approach to how it manages undercover policing in Scotland. As a result, a much more consistent approach is now taken to how undercover policing is utilised in the force, compared with the situation under the eight legacy forces. A much more strategic approach has been taken to make sure that there is consistency in how undercover policing is carried out.

I turn to Daniel Johnson’s question about the chief constable. It was an oversight on my part not to respond to the issues that he raised. I am conscious that he has now raised those issues on several occasions, and the answer remains the same. It was perfectly legitimate for me to raise with the SPA on 9 November the deficiencies in the organisation’s process. It is clear to anyone who looks at the evidence that we have now heard that the deficiencies in that process were unacceptable, as I have said time and again. I have consistently said that I believe that I took the right action in asking the SPA to consider the matters that I raised. That is why the former chair of the SPA made it clear that the board would consider those issues in making a decision.

It is also worth reflecting on the fact that, since that time in November, the SPA has considered the issue on four separate occasions and on each occasion has decided to continue the chief constable’s leave. It has revisited the matter and come to a judgment on it.

The questions that Mr Johnson asked me are questions that he has asked me on several occasions, and the answers remain the same.

Photo of Neil Findlay Neil Findlay Labour

By refusing to hold a public inquiry or to look back beyond 2000, the cabinet secretary fails victims, many of whom are women, and fails our democracy. Now, the only people in mainland UK who will not have access to justice are Scottish victims. How is that standing up for Scotland?

It seems that the rights of the general public in Scotland to get to the truth and to get justice on the issue rest in the hands of one activist, Tilly Gifford, who, as the cabinet secretary knows, is seeking a judicial review, because of the failure of the Scottish and UK Governments to hold a public inquiry to which Scots can have access.

Will Michael Matheson do the right thing by the people of Scotland and establish a public inquiry now? The police inspecting the police in the whitewash that we have heard about today simply will not do.

Photo of Michael Matheson Michael Matheson Scottish National Party

I have already set out why I do not believe that it is necessary or proportionate to hold a public inquiry on the matter here in Scotland. I am aware that many of those people who have concerns about what happened here in Scotland are core participants in the undercover policing inquiry that is taking place in England and Wales.

It is also very clear—[

Interruption

.] As I said, most of them are core participants in the undercover inquiry that is taking place in England and that will allow them to make their case.

However, even with that, it is very clear from the review that HMICS has conducted that those matters relate to units in English and Welsh police forces, and jurisdiction and responsibility for those matters rests with the Home Secretary. That is why the undercover policing inquiry should take that into account in its remit.

Photo of Ben Macpherson Ben Macpherson Scottish National Party

The report says that there is

“no evidence that undercover advanced officers ... from Police Scotland ... had operated outwith the parameters of the authorisation” in undercover operations. Does the cabinet secretary agree that that key finding demonstrates that that element of policing in Scotland is functioning proficiently and that officers are behaving in the way that their superiors and—this is important—the public would expect?

Photo of Michael Matheson Michael Matheson Scottish National Party

The report highlights that undercover officers

“had strong views that there were a number of safeguards in place to ensure that ethical standards were maintained when they were deployed” in undercover operations. One of the key findings was that

“undercover officers within Police Scotland ... understood” the legal requirements that are set out in the Regulation of Investigatory Powers (Scotland) Act 2000 and the codes of practice that go alongside it. Members will be aware that the codes of practice were changed back in 2014 in order to increase the threshold for authorisations for some matters, by moving the authorisation to an assistant chief constable. If the surveillance operation goes on for an extended period of time, the Investigatory Powers Commissioner and a deputy chief constable are required to give authorisation.

The report demonstrates the significant safeguards that are in place in Scotland and the ethical standards that are expected of undercover officers in Police Scotland.

Photo of John Finnie John Finnie Green

I thank the cabinet secretary for the early sight of his statement.

The cabinet secretary would ordinarily have an evidence base for his decision making, but I do not believe that he has delivered that in this instance. I will give two examples to show why.

In the cabinet secretary’s statement, he talked about

“the limited scale of the activities of SDS and NPOIU police officers” and said that

“outwith G8, Scottish police forces were unsighted” on those activities. However, the most damning feature that I thought that the cabinet secretary would have picked up on and used as evidence to support having an inquiry is in paragraph 166 of the report, which says:

“Our conclusions in relation to SDS deployments were based on the examination of SDS records by Operation Herne”— which is a Metropolitan Police operation—

“which stretch back some forty years. Unfortunately, it is not possible to establish if the material obtained by Operation Herne is entirely accurate or comprehensive and it is probable that, given the passage of time and the likelihood of human error, that some records are missing or inaccurate.”

I guarantee that they will be missing and inaccurate.

The cabinet secretary needs to take charge of the situation. He needs to call an inquiry and to assert his independence. This is a Scottish matter. Please deal with it.

Photo of Michael Matheson Michael Matheson Scottish National Party

The report states that HMICS examined the scale and extent of the NPOIU operations in Scotland and that it had

“the co-operation of the National Police Chiefs’ Council ... National Coordination Team”,

which is part of operation Herne, in looking at the documentation relating to a number of issues.

John Finnie will be aware that the report recognises that, as things stand, some of the information is provisional and is based on millions of documents that are being indexed and analysed as part of the preparations for the undercover policing inquiry. That is why I said that, if new evidence or information comes to light in due course on undercover policing operations involving police officers in Scotland, I will give due regard to that. However, as things stand, based on the information that HMICS has been able to get access to and which is available to it as part of the documentation process, I do not believe that that evidence is sufficient to justify establishing a public inquiry at this stage.

Photo of Liam McArthur Liam McArthur Liberal Democrat

I thank the cabinet secretary for the early sight of his statement.

I echo John Finnie’s comments and express my disappointment at the cabinet secretary’s decision not to instigate a public inquiry in Scotland. I urge him to reconsider that.

Meantime, with the confirmation of the chief constable’s resignation, does the cabinet secretary not accept that, no matter who is appointed to head up Police Scotland and the SPA, the problems are hard-wired into the structures of policing thanks to botched centralisation, and will he now agree to establish an independent expert group to come forward with proposals that inject accountability, transparency and localism back into the system?

Photo of Michael Matheson Michael Matheson Scottish National Party

In relation to Liam McArthur’s first point, on the undercover policing inquiry, I have been very clear as to the rationale behind and my reasoning for arriving at that decision. I recognise that some members in the chamber do not agree with it, but I reached it on the basis of the evidence in the HMICS report. I have also said that, should new information become available—particularly during the undercover policing inquiry, if that is not extended to include issues relating to English and Welsh units operating in Scotland—I will give full consideration to it in due course.

In relation to the SPA and Police Scotland, I do not believe that the problems are necessarily hard-wired. It is clear that the new chair of the SPA is keen not to get into a situation in which things are reviewed to death and wants to be given the space and scope to move the organisation forward in a way that involves much more engagement with Parliament, local elected members and other interested parties and stakeholders in Scotland. It is in all of our interests to give Susan Deacon an opportunity to take that forward and to give the SPA the space to make progress on those matters as quickly as possible. No doubt, as a member of the Justice Sub-Committee on Policing, Liam McArthur will be keen to scrutinise the new chair on how the SPA is moving matters forward and at what speed.

Also, in relation to Police Scotland, I recognise that there has been a significant focus on the chief constable and the senior management team. It is worth reflecting on the comments that were recently made by Deputy Chief Constable Designate Iain Livingstone about the performance of Police Scotland over recent months. Police Scotland continues to perform exceptionally well: it handled a whole range of events over the festive period, with the homicides all solved or dealt with; it has responded to other major challenges; and officers have continued to perform their duties to an excellent standard. I hope that, as of today, more of our focus will be on the organisation moving forward with its 2026 strategy and the improvements and changes that the new chair of the SPA is keen to take forward at pace.

Photo of Mairi Gougeon Mairi Gougeon Scottish National Party

Does the cabinet secretary believe that the advice and guidance for police officers engaging in undercover work is sufficient?

Photo of Michael Matheson Michael Matheson Scottish National Party

I have already said that some new guidance has just been issued on the regulation of investigatory powers codes of practice, which were approved by Parliament last week. I believe that the existing legislative framework is robust and fit for purpose, and provides the necessary safeguards on authorisation. That has changed since 2014, in that the thresholds for authorisation have been increased, as have the checks that have to be made with what was the Office of Surveillance Commissioners and is now the Investigatory Powers Commissioner’s Office for any longer-term investigations.

Clearly, where people have concerns about surveillance matters—for example, if they believe that they have been under surveillance and have questions or concerns about that—there is a process for escalating those concerns. That process is through the Investigatory Powers Commissioner’s Office, with the scope to go into an investigatory powers tribunal that can consider the issues in detail. It can, if necessary, issue findings against the relevant authorities for actions to be taken, if they have acted in a way that is unethical and inappropriate.

There are additional safeguards for individuals who have concerns about such matters, which may be carried out not just by Police Scotland but by any public authority that has provisions that enable it to undertake some form of surveillance.

Photo of Gordon Lindhurst Gordon Lindhurst Conservative

The cabinet secretary has confirmed that all 19 of the not-insubstantial recommendations will be implemented by Police Scotland. Can he also give the chamber an indication of what that will cost and where the moneys to do that will come from?

Photo of Michael Matheson Michael Matheson Scottish National Party

Any costs associated with implementation will come from existing budgets. The timeframe for implementation is an operational matter for Police Scotland. I can say to Gordon Lindhurst that the steering group that has been established by Police Scotland has representatives from HMICS on it, in order to consider the progress and the work that is being carried out. I expect that HMICS will provide an update on the progress that has been made against the recommendations in the report, as it very often does in such cases.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

Recommendations 8 and 14 of the report relate, inter alia, to the security of record keeping. Will the cabinet secretary work with the Scottish Police Authority to make sure that a dual-key approach is implemented to ensure that no single individual can gain access to the most sensitive records in a secure computer system or otherwise?

Photo of Michael Matheson Michael Matheson Scottish National Party

The keeping of records in relation to surveillance matters is governed by the Regulation of Investigatory Powers Act 2000, the Regulation of Investigatory Powers (Scotland) Act 2000 and the codes of practice that are associated with the legislation. Those responsibilities are the subject of annual inspection, which was previously carried out by the Office of Surveillance Commissioners, and is now carried out by the independent and judicially led Investigatory Powers Commissioner’s Office. Any findings that the IPC has in relation to the storing and retention of data relating to operations is reported directly to Police Scotland and can feature in its annual reports, which has been the case in the past, when the IPC identified deficiencies relating to forces in the UK.

Provisions relating to the matters that Stewart Stevenson has raised are governed by existing regulations and codes of practice that are associated with the

Regulation of Investigatory Powers (Scotland) Act 2000, with oversight by the Investigatory Powers Commissioner’s Office, which is independent and judicially led.

Photo of Monica Lennon Monica Lennon Labour

The cabinet secretary hinted at some of the tactics that are used by undercover police officers. For the avoidance of doubt, those tactics include sexual violence perpetrated by the state against women, who have been spied on by officers and conned into intimate relationships. The cabinet secretary said that he has sympathy for individuals who have suffered due to the actions of undercover police officers. The cabinet secretary must surely see that, by denying a public inquiry in Scotland, his sympathetic words and inaction are an insult to those women, their families and other victims.

Photo of Michael Matheson Michael Matheson Scottish National Party

I have already set out the reasons why a public inquiry in Scotland is not appropriate and the rationale behind my decision. I recognise that not everyone will agree, but that is the position that I have come to, having considered the issue.

I also highlighted the safeguards that are in place in the Police Service of Scotland at the moment. When they consider the report, I hope that members will acknowledge those safeguards, and that they will, from how HMICS has found the safeguards to be operating, be reassured about the ethical standards that the Police Service applies to undercover surveillance operations.

Photo of John Mason John Mason Scottish National Party

With the resignation of the chief constable, will the PIRC investigation continue and, depending on the outcome of that investigation, will the chief constable be subject to appropriate action?

Photo of Michael Matheson Michael Matheson Scottish National Party

The Police Investigations and Review Commissioner has already stated that the investigation will come to a conclusion because the chief constable has resigned from Police Scotland with immediate effect. The information that has been obtained to date will be passed to the Scottish Police Authority for it to consider. Any decisions or actions that are taken thereafter will be entirely matters for the Scottish Police Authority.

Photo of Willie Rennie Willie Rennie Liberal Democrat

We will soon be on our third chief constable, and we are already on our third chair and chief executive of the SPA. The justice secretary surely has to ask himself whether something else is going on. Perhaps the structure is the root of the problem and we will continue to have problems, no matter who is at the top. How long will the cabinet secretary allow that to continue before he acts and institutes some change?

Photo of Michael Matheson Michael Matheson Scottish National Party

I believe that a single police force is still the appropriate model for delivery of policing in Scotland. Had we not moved to a single police force, we would have found ourselves making significant cuts to front-line policing as a result of the austerity that has been pursued by the UK Government. That would have had a major impact on such an important public service.

Regarding the Scottish Police Authority, I have always been of the view that it can make improvements in some areas. The new SPA chair has given a clear commitment to making changes and improvements, and to doing so at speed. I will provide the new chair and the board with as much support as I can, as and when appropriate, in taking forward those changes.

It would be appropriate for all members to give the new chair of the SPA the space to allow her to take on those matters. If the new chair says to me that changes will be needed in how the SPA is constituted and in the legislation that sets out those matters, I will consider that seriously to see how the way in which the SPA operates could be improved. That is separate from the issue of the move to a single force, but there are certainly areas that can be improved.

It is incumbent on us all to allow the new chair the space and opportunity to drive forward the changes that she wishes to instigate. I will provide her with whatever support and assistance I can. Alongside that, if she highlights to me at some point the need for change that she believes will require Government support in order to achieve it, I will give that serious consideration to ensure that the SPA works as effectively as possible.

Photo of Stuart McMillan Stuart McMillan Scottish National Party

What will be the process and timescale to recruit the new chief constable?

Photo of Michael Matheson Michael Matheson Scottish National Party

The recruitment of the new chief constable is a matter for the Scottish Police Authority. It is for the authority to make a decision on instigating the process for that recruitment to be undertaken.

From my discussion with Susan Deacon earlier today, I can say that that is an issue that the authority has already planned to consider. It is for the board to determine the time frame for the process.

The Presiding Officer:

That concludes the statement and questions.