Former SPA Board member & crusading JCR Moi Ali. A FORMER Board member of the Scottish Police Authority SPA) - who resigned after raising concerns over a lack of transparency at the Police watchdog - has been invited to give evidence to MSPs investigating secrecy and a lack of accountability at the Police supervisory body.
The decision by the Public Audit and Post Legislative Scrutiny Committee of the Scottish Parliament to invite former SPA Board member Moi Ali to give evidence - came after a meeting on Thursday, where bosses at the Scottish Police Authority faced tough questions from MSPs on secrecy, alleged cover-ups and the "appalling" treatment of critics.
During the stormy evidence session with MSPs, Andrew Flanagan, chairman of the Scottish Police Authority was forced to admit he withheld a letter from colleagues which criticised plans to hold board committee meetings in private, leading to accusations the chairman was treating other board members "like infants".
In animated exchanges during the meeting held on Thursday last week, Former Cabinet Minister & Committee member Alex Neil MSP (SNP Airdrie and Shotts) told SPA Chairman Andrew Flanagan he was running a "secret society".
Mr Neil said: "This is not the Kremlin you are running, it is supposed to be an open public body. We have this secret society ... inside the board ... deciding on transparency of governance and the whole thing is done without public knowledge, without people out there being able to hold this board to account."
Replying to Alex Neil on the matter of not sharing the letter, Mr Flanagan said "I didn't think it was necessary to circulate the letter itself."
However – Mr Neil told Mr Flanagan he had breached "every rule in the book" by refusing to share the document with the rest of the SPA Board.
Alex Neil went on to describe the Scottish Police Authority as “a shambles”.
The full transcript of the meeting has now been published, available here: Official Report: Public Audit & Post Legislative Scrutiny Committee 20 April 2017
Alex Neil (Airdrie and Shotts) (SNP): I want to address the issue of the letter dated 9 December 2016 from Derek Penman, Her Majesty’s chief inspector of constabulary, to Andrew Flanagan,chair of the board, in which Mr Penman makes a number of substantive points about the governance of the SPA. When was the letter dated 9 December circulated to the board?
Andrew Flanagan (Scottish Police Authority): I do not think that it has been circulated to the board.
Alex Neil: It has not been circulated to the board. The letter is from the chief inspector of constabulary about the governance of the SPA, in which he makes substantial points. He specifically says: “I accept that it will properly be a matter for the Board to approve the Corporate Governance Framework and my comments are intended solely to inform members ahead of their decision next week”, which was five days after the letter was sent. Why was the letter not circulated to the board?
Andrew Flanagan: That was because the issues themselves had been well trailed and were well known. Derek Penman’s position on those matters had been expressed to members of the board and so was known. Therefore, I did not think it necessary to circulate the letter itself.
Alex Neil: It is not within your remit to make a decision like that. Under the guidelines and under statute, every board member is entitled to know what the chief inspector of constabulary says. Those were substantive points that, in many respects, were very critical of the governance review. Surely to goodness the letter should have gone to every board member before the meeting in December.
Andrew Flanagan: As I have said, the board members were already aware of the comments that Derek Penman expressed. That had been discussed at our meeting on 5 December and a number of the matters had been covered at that point.
Alex Neil: I find that very unacceptable indeed. It breaches every rule in the book about the role of a chair, particularly of a public organisation, and about the issuance of letters to board members. Every board member should have had a copy of that letter and it should have been discussed at that board meeting in December. You are not running the Kremlin; the SPA is supposed to be an open public body in which you are accountable to the board members. The view of the chief inspector, who has statutory responsibility for such matters, as it was set out in that letter, should clearly have been sent to every board member.
Andrew Flanagan: The letter was addressed to me and I believed that the matters had already been covered by the board and that members were aware of them.
Alex Neil: It was addressed to you, but Mr Penman said clearly that he wanted the letter to go to every board member. He specifically said that the letter was to inform board members at their meeting next week before they reached any decisions, but you took a unilateral decision not to circulate that to board members.
Andrew Flanagan: Yes, I did. As I said, the contents of it were well known to board members.
Alex Neil: That is not the point. The letter should have been circulated. Mr Foley, did you know that it was not being circulated to board members? Did you see the letter?
John Foley (Scottish Police Authority): I do not recall seeing it at that particular point in time.
Alex Neil: So the chief executive did not see the letter either.
John Foley: I may have seen it, but I do not recall it.
Alex Neil: You may have seen it. It is a very important letter from the chief inspector of constabulary. Either you saw the letter before the meeting or you did not. Yes or no, did you see the letter before the board meeting?
John Foley: I am telling you that I do not recall seeing it. I recall having conversations with Mr Penman around that time and him expressing his views to me clearly. Having seen the letter and read it in recent days, I find that it is in accord with a conversation that I had at the time, in which Mr Penman expressed his views.
Alex Neil: So you have seen the letter only in recent days.
John Foley: No, I do not recall seeing it at that point in time, but I might have seen it. A large number of letters come through my office. I just do not recall seeing that one.
Alex Neil: To be honest, given the three years of failure at the SPA, I find it hard to believe that its chief executive does not recall seeing a letter of that importance and with those contents. You do not recall whether you saw it. You are the chief executive and the accountable officer.
John Foley: Mr Neil, I cannot tell you that I did if I do not recall it, and I do not recall it.
Alex Neil: Presumably, every time that you receive a letter, it is date stamped. Is that correct?
John Foley: They usually come in via email. That letter is not addressed to me. I am saying that I might have seen a copy of it. It might have been sent to me; I do not know. I do not recall it, but I did not see an original letter that came in at that time, addressed to the chair.
Alex Neil: Right, so the chief executive did not see the letter—or does not recall doing so. Mr Johnston, when did you become aware of the letter?
Paul Johnston (Scottish Government): I cannot give a specific date when I was aware of the letter. I have discussions with Derek Penman, as chief inspector of constabulary, and I have certainly been aware of some of the concerns that he has had and of the issues that he has raised with the SPA. Indeed, he will shortly undertake a full inspection that will cover those matters. Don McGillivray might wish to say more about the sequencing of when the Scottish Government received particular pieces of documentation.
Don McGillivray (Scottish Government): I saw the letter at the time. The Scottish Government received it at the time, as a courtesy side copy, in hard copy from Derek Penman, on an informal basis. It was passed to me very informally, as a hard copy.
Alex Neil: We learned from this morning’s Herald that the Scottish Government gets a copy of all the board papers before each board meeting. Is that correct?
Don McGillivray: Generally, yes.
Alex Neil: Generally. So you would have picked up that the letter was not in the board papers.
Don McGillivray: Yes, we would have been aware of that at the time.
Alex Neil: Did you mention it to Mr Foley or Mr Flanagan? The letter was clearly intended for every SPA board member. Did you draw to their attention the fact that it had not been circulated?
Don McGillivray: I think that we would have regarded that as a matter for the chair to decide on.
Alex Neil: You would have regarded that as a matter for the chair.
Don McGillivray: Yes.
Alex Neil: The SPA was under attack, as it has been—rightly—for the past three years for incompetence after incompetence, including, it would appear, trying to cover up forcing a board member to resign, and yet you did not think that it was important that the letter from the chief inspector had not been circulated to board members.
Don McGillivray: I am clear that the decision on which papers go to the SPA board is for the chair to make.
Alex Neil: Yes, the decision is for the chair. However, in your role as head of police in the Scottish Government, did you not draw attention to the fact that the letter had not been circulated? The letter clearly states that it should go to board members. You knew that it had not gone to board members, because you get the board papers but, despite the importance of the contents, you did not speak to Mr Flanagan or Mr Foley and say, “Would it not be wise to make sure this letter goes to board members?”
Don McGillivray: Again, I would not have seen that as the role of Government. At the time, I would have seen that as the role of the chair.
Alex Neil: Why, then, do you get the board papers?
Don McGillivray: We get the board papers primarily for information. It is simply to make the Government aware of issues that are coming up at the board.
Alex Neil: And you never comment to the board, the chair or the chief executive on the board papers before they go to the board.
Don McGillivray: We occasionally make comments on the papers, but that is usually on matters of factual accuracy more than anything else.
Alex Neil: Nobody in the civil service thought that, given the controversies, it might be a good thing for the chief inspector’s letter to go to board members. Nobody thought to mention it.
Don McGillivray: Again, I would see a difference in the functions of the Government and the SPA in that respect. I am pretty clear that, under the governance framework that exists between the Government and the SPA, it is for the chair and the chief executive to decide on what papers go to the board.
Alex Neil: It is very clear in the rules, however, that a letter such as the one from Mr Penman has to go to board members specifically. The chief inspector asked for it to go to board members, but nobody thought to make sure that the rules were kept to.
For more on Alex Neil’s questions to witnesses from the Scottish Police Authority and Scottish Government, see the full transcript: Official Report: Public Audit & Post Legislative Scrutiny Committee 20 April 2017
As the meeting went on, Public Audit Committee members also criticised SPA Boss Andrew Flanagan - over the treatment of former SPA Board member Moi Ali – who raised concerns about a lack of transparency at the Police Authority during a public meeting.
Flanagan then wrote to Moi Ali – expressing his "dismay" over her public objections to holding more meetings in private.
The SPA Boss commented in the letter that she would not be able to participate in key committees as a result.
Ms Ali complained of attempts to silence her - after she warned that public meetings held by the SPA would end up as a piece of theatre.
Ms Ali said such meetings would be a "theatrical playing-out of decisions" that had been reached in private meetings.
In late February of this year, Moi Ali resigned from her position on the board of the Scottish Police authority.
The Sunday Herald newspaper reported Moi Ali’s resignation, stating: “A Scottish Police Authority board member has resigned after believing she was punished for raising concerns about transparency at the watchdog. Moi Ali was informed by SPA chair Andrew Flanagan that it would not be fair for her to participate on the body’s committees after she objected to plans to hold meetings in private. Speaking exclusively to the Herald, she said: “I’m resigning because I don’t think that it is right for anybody to try to silence board members from expressing their views in public.”
As Thursday’s meeting went on, SPA Chief Andrew Flanagan was asked whether he had considered resigning, Mr Flanagan said he had not.
He added: "I think we are becoming more effective, I think it is important that we recognise that there is already a significant degree of openness through public board meetings that we have."
The Scottish government has also been accused of political interference in the SPA – after it became known Scottish Ministers and the Scottish Government’s Justice Department received board papers including private documents before meetings took place or material was circulated to board members.
During the Committee meeting on Thursday, Mr Don McGillivray - a civil servant based at the Police Division of the Justice Department - admitted that the government "occasionally" made comments about reports before publication.
Moi Ali and other former board members of the Scottish Police Authority have been invited to give evidence at a future date to be arranged by the Public Audit & Post Legislative Committee.
Moi Ali – Transparency comes first.
Moi Ali - well known for her previous role as Judicial Complaints Reviewer (JCR) - is a well established champion of transparency in legal and justice related bodies from the judiciary down.
As JCR, Ms Ali gave backing to the widely supported proposal to create a register of interests for members of Scotland's judiciary: Petition PE1458: Register of Interests for members of Scotland's judiciary.
Serving as Judicial Complaints Reviewer, Moi Ali appeared before the Public Petitions Committee of the Scottish Parliament in a hard hitting evidence session during September of 2013.
Ms Ali gave a full account of her role as Judicial investigator to MSPs, and went on to describe oversight of Scottish judges as “Window Dressing”.
At the hearing, Ms Ali also backed proposals before the Scottish Parliament calling for the creation of a register of judicial interests.– reported here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.
The full transcript of evidence from Moi Ali during her appointment as Judicial Complaints Reviewer can be found here: Evidence from Scotland’s Judicial Complaints Reviewer Moi Ali to Public Petitions Committee on Petition 1458 Register of Interests for Scotland’s Judiciary,
The proposal to bring greater transparency to Scotland’s judiciary - Petition PE1458: Register of Interests for members of Scotland's judiciary - first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.
A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 - ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.
During her three year term as Judicial Complaints Reviewer, Moi Ali published three hard hitting reports on the lack of transparency and accountability in Scotland’s judiciary:
Further coverage of Moi Ali’s time as Judicial Complaints Reviewer along with reports of her support for transparency and accountability in the justice system can be found here: Moi Ali - Transparency and accountability for Scotland's judiciary