Further Detail on the Report Topic

The SPA Legal Committee has a strategic oversight and governance role with respect to legal actions involving Police Scotland. Police Scotland’s use of NDAs attracted criticism and there was a consensus of Board Members that their use lacks transparency. Accordingly Members wished to be addressed on the number of NDAs used throughout the previous calendar year and to be satisfied that there were sound legal reasons for their use and that there was no attempt to prevent whistleblowing or failure to comply with the ACAS guidance on their use.

Non-Disclosure Agreements or COT-3 Agreements are routinely used by parties to litigation in settling claims. Overwhelmingly Police Scotland requests NDAs for commercial reasons or to protect the confidentiality of serving Police officers. The Board have also been provided with information that shows that NDAs are often requested by the other party to the agreement.

Since the SPA sought stronger oversight of Police Scotland’s use of NDAs, the following practices and procedures have been implemented which provides stronger governance and oversight:

• Those instructed to act on behalf of Police Scotland have been advised that NDAs should only be used when very good reasons exist for doing so and that their use has to be sanctioned by the instructing Solicitor of Police Scotland;

• A register is kept within the office of the Legal Services Manager that records every NDA and the reason for entering into such an agreement.

The Committee has undertaken oversight and governance of Police Scotland’s use of NDAs throughout 2022. It was shown there is strong oversight of their use and further governance and oversight has been introduced.

In the year 2023/24, Police Scotland settled 388 cases relative to Employer’s liability, public liability and motor claims. NDAs were used in 7 cases. This represents a usage of NDAs in 1.8% of cases settled. This is in line with cases settled in 2021 (1.7%).