POLICE officers have been expected to enforce the Scottish Government’s guidance rather than the emergency laws amid concerns a growing number of people have been changed under common law for their behaviour during the pandemic.

The Scottish Police Federation (SPF), the union representing rank and file officers, has warned that the use of culpable and reckless conduct changes under common law has “increased exponentially” for those “considered to be participating in the most egregious breaches of the coronavirus regulations” - with the emergency laws not going far enough in covering expectations from ministers.

The SPF has told MSPs on Holyrood’s Covid-19 Committee that the organisation has “reservations there appears to be an implicit expectation that the police form value judgements on the severity” of people breaching the emergency laws.

In a submission to the committee, the SPF has also warned “there is a risk that culpable and reckless conduct changes could be seen as a way of enforcing the guidance” as well as “in response to public or political commentary where no specific offence exists”.

The rise in culpable and reckless conduct charges through common law, has raised the prospect of the guidance being enforced as law.

Appearing in front of the committee, Calum Steele, the general secretary of the SPF, warned that MSPs drawing up emergency laws during the pandemic “should be asking themselves whether the scope of the legislation goes as far as they wish to extend it in the first instance”.

He added: “It does suggest that there are judgements being made that provisions of the legislation do not go far enough to cover the examples of behaviour that police officers have encountered.

“There are examples, which I cannot specifically go into, where it appears individuals have not contravened the coronavirus regulations in any way, shape or form, but have found themselves liable under common law charges.

“That in its own right kind of suggest there has been an indirect expectation placed on the police services almost to police, to some extent, to the guidance rather than the law.”

Earlier, Michael Clancy, director of law reform at the Law Society of Scotland, told MSPs that the guidance published alongside the Scottish Government's emergency legislation “is important so that people can understand which side of the law they fall”.

He added that the dozens of pieces of subordinate legislation passed in connection with the pandemic could be seen as “difficult to comprehend”, placing an extra significant on clear guidance.

Mr Clancy added: “It’s important, also, that when that guidance is explained by ministers and others that people understand the difference between guidance and the law and I say that should include ministers and others.

“Frequently, at the very beginning of the crisis, we were told that you could go out to exercise for an hour or two hours but of course, when one looked at the coronavirus legislation, there was no such limitation of time in the actual legislation.

“I think that consistency between what is in the law and the messaging around the guidance, which informs people’s understanding of the law, has to be quite up there as front and foremost as an objective.”

Mr Steele warned MSPs that non-compliance with regulations put in place to stop the spread of the coronavirus, particularly indoor gatherings, is on the rise.

He said more complaints were being made against certain people who “have had enough” of the restrictions.

But Mr Steele said he does not believe, despite recent statistics, people in cities are more likely to break the rules as opposed to those in more rural areas.

Following a question from Labour MSP Alex Rowley, Mr Steele said: “I think to some extent, we’re probably talking about house parties largely… but it actually reaches across the length and breadth of the country.

“There is an increase in general non-compliance with those specific restrictions.

“Those examples of non-compliance are increasing among a relatively small proportion of the population who have just decided that they’ve had enough and they no longer intend to play by the rules.”

A Scottish Government spokesperson said: “We believe police officers have the necessary powers to fulfil their duty to uphold the law, keep the public safe and help manage the spread of coronavirus. 

“For example police have the powers to enter and disperse large house parties which is an important tool in suppressing the virus. It is important that these powers are being used proportionately and we expect them to be used as a last resort.

“We greatly value the work of Scotland’s police officers and staff in keeping communities safe. The Justice Secretary regularly meets with the Scottish Police Federation and Police Scotland and will continue to do so throughout our response to the pandemic.”

Police Scotland's deputy chief constable, Malcolm Graham, said: "We have seen a considerable increase in the number of gatherings being reported to us in recent weeks but our approach has not changed.

“Our response remains proportionate, reasonable and fair – underpinned by the principle of policing by consent, from which we draw our legitimacy.

"We have increased patrols in our communities to support people, explain the regulations and to encourage them to do the right thing to help prevent the spread of coronavirus."

He added: "Officers will not tolerate blatant disregard for the law and will not hesitate to use enforcement action where they encounter wilful or persistent breaches.

"An independent advisory group, commissioned by the Chief Constable and led by John Scott QC, has consistently provided external assurance  around the proportionality and legitimacy of our policing response."