Transcript of Commissioner's speech at Policing in the 21st Century conference January 2012

Let me open my short talk today by saying that I welcome wholeheartedly the Police and Fire Bill published last week, specifically the proposed arrangements designed to enhance governance and accountability.

These far-reaching proposals are "game changers". Establishing a single Police Service, a Police Authority and a Police Investigations and Review Commissioner is a bold and imaginative move by the Scottish Government. I do not think that it is an exaggeration to call it a once in a generation opportunity to create a strong, fit for purpose governance and accountability framework that will be able to hold policing bodies in Scotland to account.

My own elevator pitch would be that a strong accountability mechanism helps policing by securing public confidence at a time of change. It's essential that the new arrangements are transparent, that those involved are competent, that policing bodies are open to challenge by an independent body, that lessons are learned and shared, that there is an appropriate balance between local and national, and most of all that there is a common ethical base.

The tectonic plates that underlie policing are shifting and new landscapes are emerging. The demise of the Metropolitan Police Authority and the transfer of responsibility for the governance of policing to the Mayor's Office for Policing and Crime ('MOPSY') just last week, presages the election of Police and Crime Commissioners across England and Wales later this year. On both sides of the Irish border there have been changes to those responsible for justice, the oversight of police and the investigation of complaints. And a growing number of reserved bodies blur operational boundaries.

It's reassuring that Scotland has not slavishly followed developments elsewhere but has picked the best aspects of the governance of policing across these islands.

There are many pieces of literature and case studies out there, which set out the key elements of governance and accountability. In producing my talk for today I have drawn on my experience of corporate governance, my work at the PCCS and my commitment to a Human Rights Based Approach to policing.

It all begins (and ends) with Governance

We have seen, all too clearly in recent years, how "light touch" regulation can backfire. From the long-term consequences of failures of regulation in the financial services sector, to non-executive Board members, in some of our biggest public companies, failing to challenge their executive and hold them to account. We must not make that kind of mistake in relation to oversight of the new Police Service of Scotland.

Those involved in police reform would, I am sure, be the first to accept that there are shortcomings in the existing system of governance and that the advent of a single force has made change not only desirable, but essential.

The government has pledged that accountability will be strengthened and that there will be no interference with the operation of the new bodies. However, it remains to be seen if all parties can rise to the challenge and realise the potential of the Bill.

Here are some questions to test the governance arrangements.

• Are the bodies up to the task?
• Are the members up to the task?
• Does it work on the ground?
• What does success look like?

Crucial to this will be the ability of the members of the SPA to set the strategic objectives of policing at the national level, the 'What',  allowing the command team to get on with the 'How' of policing. What will be their tolerance of risk and ambiguity, and their willingness to learn from early setbacks? Most governance models look good on paper, and even bad governance models can work when there's a will. It's when there's a won't that the design gets tested. What will the members do when the Chief Constable says 'No' and vice versa? Water cannon? Is it operational independence, or operational primacy?   The early stages will be crucial in establishing relationships and setting the tension and tolerance.

Members must be competent, confident and vetted if they are to challenge operational practices; they must be able to balance national and local interests; the Authority cannot be constrained by political sensitivities; and its operation has to be Convention compliant. MoU's will need to be established with other, reserved, policing bodies such as the National Crime Agency, particularly where there are weaknesses in their governance.

Given the apprehension about the need for local accountability its worth remembering that the Patten report talks about policing with the community, rather than policing the community. Policing must be based upon a partnership between those "policing" and those being "policed". It's not just about compliance but about building a relationship that transforms aspects of society. And consent must be informed.  It is hoped that the arrangements for local accountability set out in the Bill will strengthen public support for policing, and allow marginalised communities to become involved in and feel ownership of policing.

Second, I want to stress the importance of Independent Investigation

It will come as no surprise to you to hear that I have argued consistently that police complaints are different from any other type of complaint we make about our public services. Furthermore, I argued that a single police service requires an independent body, with a remit that encompasses not just the review of complaints - important though that is - but, that the time was right for the Scottish Government to consider introducing an investigative capacity to the role of Commissioner.

As you will have seen, the Bill sets out that 

• The Chief Constable and the Scottish Police Authority are required to maintain suitable arrangements for the handling of relevant complaints
• My own body is to be renamed , the Police Investigations and Review Commissioner and will carry out complaint reviews and investigation of serious incidents and criminal offences involving the police
• Crown Office will direct investigations by the Commissioner and importantly the
• Commissioner will be able to investigate other police matters where s/he considers it would be in the public interest to do so.

I am delighted that the Cabinet Secretary listened to the arguments and, in studying the results of not one, but two consultations that included questions on the future of complaints about the police, proposes extending the PCCS remit and renaming the organisation to reflect that enhanced role.

In 'The idea of justice' (2010) Sen links the viability of claims about human rights with independent scrutiny.  The creation of the Police Investigation and Review Commissioner provides us with a blueprint that strengthens the governance of policing. It raises the bar.

The Bill empowers the Commissioner to investigate incidents that engage Articles 2 and 3. Crucially it appears to meet the requirements of Ramsahai v Netherlands (2007) and  R(Mousa) v Secretary of State for Defence (2011), that there must be 'an hierarchical, institutional and actual separation' between those carrying out the investigation and the agency or persons implicated. It moves Scotland closer to realising the principles set out by Thomas Hammenberg, the European Human Rights Commissioner (March, 2009), and accords with a new standard for oversight bodies that PCCS has developed with European colleagues, the Laxenberg Declaration (2011). At a stroke the Scottish Government has addressed the issue of the police investigating the police. That has to be to the benefit of everyone.

Third, I believe that policing in all its manifestations needs to be underpinned by an ethical framework. By that I mean a framework that we work within. One that applies to us all - the police, the Police Authority and the Commissioner. One that puts people and their rights at the centre of all policies and practices.

It is not enough simply to have blind faith that those in whom we put our trust to keep us safe will behave well - there are too many examples in this country and elsewhere where that has been shown not to be the case.  Consider, for example, how Lord Woolf's inquiry (30 November 2011) into the Gadaffi gift of £1.5 million to the London School of Economics blamed the absence of an ethical code for some of the reputational damage that followed.  A few weeks later the FSA listed 'seven deadly sins' that led to the near demise of the Royal Bank of Scotland. It identified underlying deficiencies in the governance and culture that made it prone to make poor decisions.

Ethical standards are the cornerstone of good governance. Alison Kelly goes further, describing it as 'the central nervous system of the organisation' (2010). The Good Governance Standard for Public Services (2005) has been used and endorsed by policing bodies. Standard 3 provides the ethical dimension - 'Good governance means promoting values for the whole organisation and demonstrating the value of good governance through behaviour'. It's crucial that the SPA, PSS and PIRC share a common ethical base and that this is evident in every aspect of policing.

There are a range of international Conventions and Codes that inform the ethical basis of policing. Writing about police powers and human rights in Scotland, Pennycook (2010) believes that human rights bridge the ethical dimension and the everyday world of policing, and can provide a framework against which police policies and actions can be assessed.

Mawby and Wright (2005) argue that accountability of policing must be based upon a human rights approach if it is to balance the unwarranted exercise of coercive power by the police, with their effective operation.  It is an effective mechanism to monitor the good and the bad. It's therefore not surprising that several policing bodies allow a human rights observer to monitor their actions during high profile, high risk events.

A core function of policing is to protect human rights. A former police ombudsman, Dame Nuala O'Loan, cites the massive difference that adopting a human rights based approach made to policing in Northern Ireland, changing its focus and allowing strategy and operations to be tested against ethical standards. She observed that 'When human rights are factored into everyday policing, everything changes'. 

On taking up his appointment as President of ACPO, Sir Hugh Orde acknowledged the powerful impact on policing of adopting a human rights based approach. His successor as Chief Constable of the PSNI, Matt Baggott, recently ceded that while concepts such as necessity and proportionality have become part of the language of policing, we have yet to realize the potential of human rights.

The Scottish Human Rights commission has developed a Human Rights based Approach for public bodies and road tested it in The State Hospital. I commend it to you.

Finally, I've stressed that policing is all about human rights; but let us not forget that police officers also have human rights.

All this is just part of the story, though. As they say, the devil is in the detail. As the Bill moves through the Committee stages, the proposals will be refined and robust checks and balances will be built in that will contribute to public confidence in the new Police Service of Scotland. I'll close by predicting that the 21st century will be defined by how well we hold the police to account. Meantime, as a famously independent investigator was fond of saying, 'The game is afoot!'

Thank you.