Do Police Scotland have the right to remain silent?

Holyrood's Justice Committee gave Deputy Chief Constable Neil Richardson a bit of a drubbing on Tuesday. MSPs questioned the senior police officer with uncharacteristic ferocity and skepticism, on how it came to be that Police Scotland "recklessly" obtained communications data about a journalist's sources without the necessary judicial approval. 

Richardson's line was that he had been cast as an "archetypical villain." Taking swipes at reporters and reporting, he insisted that the force's recklessness should be understood, not as sinister over-reaching or indifference to critical rules on the integrity of data from prying coppers, but a wee human error by a senior, well-intentioned officer who thought he was applying the rules properly. Their ratty exchanges in parliament left MSPs unconvinced that they'd heard the whole story. By the end of Tuesday's meetings, MSPs had resolved to summon Chief Superintendent Clark Cuzen, DSI David Donaldson, DSI Brenda Smith and DI Joanne Grant to parliament, to speak to the issue. Donaldson had been named by Richardson earlier in proceedings as the officer responsible for "misinterpreting" the RIPA rules. 

But the front page of today's Herald suggests considerable police disquiet in the ranks about the idea of operational officers appearing before Christine Grahame's committee. David Leask has the scoop. Richardson is reportedly taking legal advice on whether his officers can decline to attend, with sources complaining of an "unprecedented political interference" in policing. Well, what are Richardson's lawyers likely to tell him?

Firstly, the Standing Orders of the Scottish Parliament distinguish between invitations to give evidence, on the one hand, and Holyrood's powers to require attendance. Invitations might safely be declined for any number of reasons. There are no legal penalties for doing so. On the papers, it is clear - at present - that these officers have only been invited to attend the Justice Committee's proceedings. What Police Scotland must carefully judge, however, is whether MSPs are likely to play hardball, and to respond to any polite refusal of their invitation with a requirement that these officers appear.

Under section 23 of the Scotland Act 1998, Holyrood has the power to require "any person" to appear before it, or to produce documents, "concerning any subject for which any member of the Scottish Executive has general responsibility." Under s. 23(7), judges and tribunal members cannot be compelled. Procurators fiscal aren't required to "answer any question or produce any document concerning the operation of the system of criminal prosecution in any particular case" if the Lord Advocate considers answering questions or producing documents "might prejudice criminal proceedings in that case or would otherwise be contrary to the public interest."

More generally, witnesses aren't obliged to answer questions which they "would be entitled to refuse to answer or produce in proceedings in a court in Scotland." But under the Act, there is no general police exemption from parliamentary scrutiny. Even concerning operational matters. 

What happens if the witness doesn't turn up, or if the documents demanded are never produced? It is a criminal offence under s.25 of the Scotland to ignore a requirement to appear, punishable by imprisonment for a period not exceeding three months, or a fine of £5,000. Under Rule 12.4 of Standing Orders, the Justice Committee is fully empowered to use these tools of compulsion and discovery. 

Which - depending on the strength of political will behind this, and the raw nerves of both the committee and the police force - must make bleak reading for Deputy Chief Constable Richardson and his officers. There may, however, be a wee legal wrinkle here which the police might be able to exploit. Holyrood's powers to compel witnesses to appear are subject to one important limitation. Witnesses may only be required to speak to "any subject for which any member of the Scottish Executive has general responsibility."

On one formulation, MSPs are seeking to scrutinise the general operation of policing in Scotland here: a devolved matter. But the heart of the Justice Committee inquiry is the application of RIPA. And under Schedule 5 of the Scotland Act, the interceptions of communications is a reserved matter. Scottish Ministers do not have "general responsibility" for its regulation. This is a pretty thin argument, I grant you. But if you are an anxious police officer, in search of any legal pretext to decline to appear, it might offer you just the wisp of an excuse.