This book has conceptualised the role of knowledge within the context of police governance. Drawing on extensive empirical analysis of the Scottish Police Authority, I have put forward a framework to institutionalise epistocracy within a broader networked-governance setting. It is worth noting that my intent is not to assert the universal applicability of this framework; rather, I acknowledge that the concept of epistocracy holds broad relevance and that the framework can be tailored and adapted to suit diverse governance contexts. Police governance requires a careful balancing of local traditions with pressing and often complex national and transnational concerns. The foundation of this work rests on the understanding that knowledge plays a pivotal role in policing and police governance. Through the analysis presented in this book, I have sought to provide a blueprint for a structured incorporation of epistocracy, which, in essence, entails the allocation of decision-making authority to those possessing diverse forms of knowledge, expertise, and experience relevant for police governance. This book underscores the need for a nuanced approach to governance that recognises the intricate interplay between a broad range of actors and stakeholders. The framework presented here represents a step towards the formal recognition of epistocracy in governance contexts, acknowledging its potential to enhance the quality and effectiveness of decision making and police organisational accountability. Policing scholars have long tried to solve the regulatory puzzle of ensuring policing remains responsive to the concerns of communities and their locally and centrally elected representatives. They have sought ways to achieve this while providing necessary safeguards against undue partisan interference in policing. The aim of this book has been to contribute to existing debates and to invite policing scholars, policy makers, and practitioners to consider the value of epistocracy in police governance. I envision epistocracy to act as a buffer between the state and the police, and as a conduit between the police and the public.

This book also frames Scottish police governance arrangements in the context of broader discussions about localism, operational independence, and police organisational accountability. In doing so, it analyses the policy discourse leading up to the 2012 Reform Act and chronicles the developments spanning a decade since the centralisation of Scottish local police forces. Following a summary of the key arguments discussed in each chapter, I present some concluding thoughts in relation to the broad themes covered in this book.

Pre-reform

Scottish Government

• The Scottish Policing Board Foundation Document, November 2009.

• The Scottish Policing Board, Towards a Sustainable Policing Model for Scotland, Paper 3, Scottish Government Police Division, September 2010.

• Sustainable Policing in Scotland, Project Mandate, 8 October 2010.

• Sustainable Policing Sub Group, Minutes of the Meeting, 16 November 2010.

• Sustainable Policing Project Interim Report, 16 November 2010.

• The Scottish Policing Board, Minutes of the Meeting, 15 December 2010.

• Sustainable Policing Sub Group, Project Update, 8 February 2011.

• Sustainable Policing Sub Group, Accountability Paper, 8 February 2011.

• A Consultation on the Future of Policing in Scotland, 10 February 2011.

• Sustainable Policing Sub Group, Project Update, Phase Two Report: Options for Reform, 18 March 2011.

• Scottish Policing Board, Police Reform, Paper 2, 21 June 2011.

• A Consultation on Reforming Police and Fire and Rescue Services in Scotland, 15 September 2011.

• Outline Business Case for Police Reform Programme, 15 September 2011.

• Social Research: Keeping Scotland Safe and Strong – A Consultation On Reforming Police And Fire And Rescue Services In Scotland: Analysis Of Consultation Responses, 9 February 2012.

The Scottish Parliament

• Justice Committee – Report on Inquiry into the Effective Use of Public Resources, 4th Report, 2008, Session 3.

• Police and Fire Reform (Scotland) Bill, submitted on 16 January 2012.

• Justice Committee – Official Report, 34th Meeting, Tuesday 27 November 2012, Session 4.

HMICS

• Independent Review of Policing in Scotland led by Paddy Tomkins, January 2009.

• Governance and Accountability of Policing in Scotland led by Andrew Laing and Emma Fossey, May 2011.

HMICS and Audit Scotland

• Dumfries and Galloway Constabulary and Police Authority, Best Value Audit and Inspection, June 2012.

• Central Scotland Police and Central Scotland Joint Police Board, Best Value Audit and Inspection, July 2012.

• Fife Constabulary and Fife Police Authority, Best Value Audit and Inspection, September 2012.

• Audit of Strathclyde Police Authority, Best Value Audit and Inspection Follow-up Report, September 2012.

• Best Value in Police Authorities and Police Forces in Scotland. Overview Report, November 2012.

Audit Scotland

• The Role of Boards, September 2010.

• Learning the Lessons of Public Body Mergers, June 2012.

In police governance scholarship, the notions of ‘governance’ and ‘accountability’ have been deployed and utilised interchangeably, both often referring to the same underlying principles. The extant body of literature can be categorised under three main branches. Firstly, the constitutional and legal position (Marshall, 1965, 1978; Lustgarten, 1986; Walker, 2000; Jones, 2008; Lennon and Murray, 2018). Lustgarten and Walker framed police governance within the contours of constitutional law. Both deemed accountability as ‘too narrow’, exploring instead the paradoxical relationship between the democratic state and the police and the enabling and constraining functions of law in relation to police powers (Lustgarten, 1986: 1; Walker, 2000: vii). Secondly, the examination of actual mechanisms and structures of governance in Britain, focusing on the tripartite relationship between central government, local police authorities (police and crime commissioners since 2011), and chief constables (Marshall, 1965, 1978; Gordon, 1980; Oliver, 1987; Reiner and Spencer, 1993; Reiner, 2010; Lister, 2013; Lister and Rowe, 2015; Loveday, 2018a), and the various regulatory strategies implemented by Western European liberal democracies to secure accountability of the police (Terpstra, 2011a; Bayley and Stenning, 2016; Stenning, 2021; Laming and Valentine, 2022). Finally, while not explicitly concerned with mechanisms of ‘governance’ or ‘accountability’, several notable scholars have offered broad conceptualisations of democratic policing with an implicit aim of promoting democratically responsive and equitable policing (Marenin, 1982; Jones et al, 1996; Loader and Walker, 2007; Aitchison and Blaustein, 2013). The literature on police accountability has largely focused on the policing of Black and minority ethnic groups (Bowling and Phillips, 2002; Rowe, 2004; Whitfield, 2012; Bowling et al, 2019), police ethics, and professionalisation (Neyroud, 2008) to tackle individual abuses of power, malpractice, and corruption and legal regulation of police powers (Maguire, 1988; Dixon, 1992; Lennon and Murray, 2018).

In this chapter, I firstly provide conceptual clarifications for the terms ‘governance’ and ‘accountability’ used throughout this book. Drawing on the canon of literature in public administration, I adopt a focused definition of accountability as a mechanism rather than a virtue (Bovens, 2007, 2010; Schillemans, 2011). I then review the extant scholarship on police governance in Britain and similar liberal democracies, examining the various models and regulatory strategies and situating these discussions within the broader context of governance of public services.

In the complex landscape of policing and security governance, the public police maintained by the state continues to hold a dominant status and a ubiquitous presence within the social and cultural fabric of most anglophone liberal democracies. This inviolable relationship between the state, the police, and the public is nowhere more pronounced than in Britain (Walker, 1996; Loader, 1997; Crawford, 2006; Reiner, 2010). While there is consensus that the public police forms part of a broader web of policing and security (Banton, 1964; Crawford and Lister, 2006; Brodeur, 2010; Crawford, 2016), the traditional discourse and scholarship on police governance in Britain has often focused on the relationship between the state and its central and local structures of government, and chief constables responsible for leading their respective police forces (Lustgarten, 1986; Walker, 2000; Reiner, 2010, 2013; Lister, 2013; Lister and Rowe, 2015; Bayley and Stenning, 2016; Loveday, 2018a). Examining the interplay between these actors and the trichotomy of powers aids in our understanding of who governs the police, who funds it, who determines its policies, strategies, and priorities, as well as its mandate and raison d’etre. These seemingly mundane considerations, however, are made complicated and contentious due to the operational independence doctrine in Britain and similar policing systems (Bayley and Stenning, 2016). While intended to safeguard the police from undue political and partisan interference, what operational independence means in the context of police governance, and accountability to external actors, has been a subject of much debate and scholarly engagement. But recent scholarship on police governance has acknowledged the emergence of a broader range of regulatory bodies and inspectorates leading to a far more intricate and complex set of arrangements going beyond the traditional debates (Malik, 2018; Henry et al, 2019; Jones and Lister, 2019). The Police and Fire Reform (Scotland) Act 2012 amalgamated Scotland's eight local police forces into a single national Police Scotland. And it replaced the local police boards, responsible for maintaining those police forces, with a central Scottish Police Authority. This book situates the changes heralded by the 2012 Reform Act within broader developments and scholarship on police governance in Britain and similar liberal democracies. In doing so, it revisits the status of the operational independence doctrine and its broad interpretation in the Scottish policing discourse.

The Scottish criminal justice system has a history of casting itself apart as more progressive and distinct from England and Wales (McAra, 2005, 2008; Mooney et al, 2015). However, as Brangan (2019) found, while Scottish penal reform in the 1990s had a civilising and progressive character (in comparison to England and Wales and other punitive Western democracies, notably the US), Scotland's claims to penal superiority may be misplaced. Scottish policing has also set itself apart from its counterparts south of the border through claims to a progressive, community-led, and social welfarist approach to policing (Gordon, 1980; Walker, 2000; Donnelly and Scott, 2010; Fyfe and Henry, 2012). The primary underlying reason for this is strong claims to localism – Scottish police forces emerged as part of the local administration, without much need for legislation, and well before the Metropolitan Police Act of 1829 (Gordon, 1980; Walker, 2000). Consequently, Scottish police forces have claimed a much closer connection with local communities through embeddedness in the local polity (Scott, 2011). One of the strongest criticisms of the 2012 Act was the removal of local police boards and a perceived lack of formal structures of local governance of policing (Scott, 2013a, 2013b; Terpstra and Fyfe, 2015; Hail, 2016). However, the networked-governance arrangements introduced in Scotland, as well as in England and Wales, have given way to a ‘complex’ and ‘contested central and local dynamics’ (Henry and Aydın-Aitchison, 2019: 511; also Jones and Lister, 2019). And while Jones and Lister (2019) urge caution with regard to narrowly focusing on the localism versus centralisation debate, the tussle for power between local and central remains a dominant theme in the study of police governance structures in Britain (Gordon 1980; Lustgarten, 1986; Walker, 2000; Reiner, 2013). Despite idealised appeals to localism, it is the power brokers at the centre that devolve their own powers to shore-up local governance (Jones and Lister, 2019). In pre-devolution Scotland, local government control over policing and other areas such as community justice had been regarded as ‘vital to maintaining a distinctively Scottish, welfare-oriented social work ethos’ (Buchan and Morrison, 2020). Henry et al (2019: 575) have argued that democratic ideals of responsiveness, recognition, and distribution of power are often ‘expressed through local government and public service delivery institutions in Scotland’.

As discussed in earlier chapters, the governance of police is not just concerned with financial management and efficiency. There are other considerations such as strategic direction, policing styles, and overall organisational policies, and how those policies are implemented in practice (Lustgarten, 1986; Walker, 2000). Chief constables have traditionally laid claims to democratic accountability through what Reiner calls a ‘mystical process of identification with the British people, not the state’ (2010: 74). There is consensus, however, that it is the elected representatives who decide whether the police should have a broad social welfare role, or a narrow crime prevention one (see for instance the discourse in England and Wales: Home Office, 2010). There are other matters that also require legitimate external input, such as policing principles and policing priorities (Millie, 2013). These issues require careful consideration and a balancing of competing interests, public demands, policing doctrines, and operational expertise, financial constraints, and political agendas. Police governance mechanisms also need to ensure areas of internal management, that are the responsibility of chief constables and senior officers, are working as intended. That complaints, both from members of the public and internal whistleblowers, about potential abuses of power, corruption, and officer misconduct are adequately investigated. These different dimensions of police governance and accountability form part of the ‘regulatory puzzle’ for the democratic state, or the ‘paradox of police governance’, as conceived by Walker (2000: 4). For Walker, on the one hand, the state empowers the police to act on its behalf, sets out the legal boundaries for police organisations to operate within, allocates public funds and resources to buy land, property, equipment, and to employ staff, and sets national policing objectives and priorities. On the other hand, the state seeks to restrict the same powers to ensure policing conforms to core democratic values such as fairness and equity, to maximise efficient use of public resources, to ensure policing is responsive to shifting public concerns (such as concerns about hate crimes following a major terror incident, or cases of historical child sexual abuse), to monitor police performance against national and local policing objectives, and to seek an explanation on how public resources have been spent, particularly where policing has failed to deliver on agreed objectives (Walker, 2000: 4–6).

The SPA/SIPR Think Tanks have been established to facilitate SPA engagement with research evidence on matters related to policing, broadly refined, and its practice. The Think Tanks will run regularly and will aim to identify topics of importance through dialogue with Board members of the SPA.

Ali Malik is a fully-matriculated PhD candidate at the University of Edinburgh. He is studying the post-2012 Act police governance arrangements in Scotland. Ali's roles and responsibilities in the Think Tanks include:

• Providing general administrative support to the Steering Committee1 in organising Think Tank sessions

• Working with the Steering Committee to develop the research content of Think Tank sessions (including working with the Committee to identify appropriate topics and speakers, and contacting speakers and invited participants)

• Attending Think Tank sessions and writing up a note of themes raised and discussed (but without attribution to specific persons, other than invited speakers) for the record. These notes may be published by the SPA/SIPR.

It is understood that Think Tank sessions themselves are ‘safe spaces’ in which participants can voice views for the purposes of discussion without having those views attributed to them. Deliberations within Think Tank sessions are therefore not part of the fieldwork of the PhD and should not be reported within the PhD or subsequent publications without the express written consent of the individuals concerned. It is recognised, however, that the Think Tanks provide Ali with a means of meeting and networking with SPA Board members and other important office bearers in the field and that he may use such contact to inform people about his research and request consensual interviews with them (which they have every right to refuse). All research for the PhD will be subject to the University of Edinburgh's ethical review processes.

Payment. Ali will be paid for time spent on activities related to his work with the Think Tanks and can claim reasonable travel and subsistence expenses. The daily rate is £151. The hourly rate (based on a 7 hour working day) is £23. Receipts and notes of time spent on relevant activities should be submitted to the SIPR Knowledge Exchange Officer at regular intervals.

Note: Unless explicitly stated, all respondents in role when the fieldwork started in

March 2015.

MSPs

Former Cabinet Secretary

2 x opposition MSPs (Labour and Liberal Democrats)

The Scottish Police Authority

2 x executive officers

4 x non-executive board members

Police Scotland

1 x deputy chief constable

1 x chief superintendent

3 x local divisional commanders (As part of the partners in scrutiny research)

2 x local area commanders (As part of the partners in scrutiny research)

HMICS

1 x a senior representative

Local Scrutiny Committees (As part of the partners in scrutiny

research)

1 x convenor

2 x lead officers

1 x councillor

Other

Civil servant involved in the reform programme

Third sector representative (As part of the partners in scrutiny research)

In order to analyze the relationship between international, EU and national law properly, this chapter establishes a working hypothesis: a common denominator of international, EU and national law. Analogous to the historical idea of social contract theory, this common denominator is consensus. After revisiting the major criticism of consent as a (moral) obligation to obey the law, the chapter elaborates on the moral duty to adhere to the pacta sunt servanda principle. After discussing the thesis of an innate Universal Moral Grammar (UMG) that relies on an analogy to the thesis of a universal grammar of the human faculty of language in linguistics, this chapter submits that Colwyn Trevarthen’s concept of primary, secondary and tertiary intersubjectivity is more suitable for conceptualizing the origins and development of the biological setup of human morality. This chapter refers to intersubjectivity, as the decisive concept to align morality and its development with core concepts of (developmental) psychology in order to lay bare the origins of moral normativity, which is essential for us as a basis for the pacta sunt servanda principle.

The relationship between international and national law has been debated for centuries. Generally, the floor has been divided between two approaches: dualism and monism, mostly as advocated by Hans Kelsen. I argue that, in the light of major developments since their inception, such as the establishment of the European Union (EU), these theories can no longer comprehensively explain the relationship between international, EU and national law. While dualism as developed by Heinrich Triepel liberated the international legal order from an overly dominant national perspective some 125 years ago, it is not well equipped to accommodate the massive overlaps between international, EU and Member State legal orders today. In Hans Kelsen’s version, monism is an epistemological theory about what the law might be. It does not provide satisfactory guidance for the doctrinal solution of norm conflicts between international, EU and Member State law. Thus, a key focus of this book is to reconceptualize the theoretical relationship between legal orders. Even though some scholars have doubted the relevance of theoretical inquiries such as dualistic or monistic analyses of the relationship between legal orders, I cannot agree with those who trivialize this theoretical discussion by saying it would be “unreal, artificial and strictly beside the point.”1 If we continue reading Fitzmaurice’s view, it becomes clear that this is simply a dualistic argument. Yet current developments, fundamental changes and new phenomena such as the massive increase in international institutions, actors, norms and tribunals as well as adjudicators make it imperative to seek new theoretical concepts. The so-called globalization of law2 as framed in the famous constitutionalization of international law3 may be mentioned, among other developments, to elucidate the ever-growing importance of the debate on whether international, EU or national law has the final say.4