Infrastructure Bill [HL]

Lord Faulkner of Worcester Excerpts

Monday 3rd November 2014 Lords Chamber

Moved by

[Lord Faulkner of Worcester]

53A: After Clause 15, line 9, leave out “(3)(a)” and inset “(3)”

[Lord Faulkner of Worcester (Lab)]

My Lords, in moving Amendment 53A, which is in my name and the names of the noble Lords, Lord Ramsbotham, Lord Bradshaw and Lord Jenkin of Roding, whom I am delighted to see in his place at this late hour, I shall speak also to the other amendments in this group, which were tabled by the Minister and by the same group of four of us.

I start by expressing my very genuine thanks to the Minister for listening so closely to the arguments which were put forward in Grand Committee and for accepting the principle that the Infrastructure Bill is an appropriate vehicle to put right the anomalies surrounding the jurisdiction and powers of the British Transport Police. That is why I was happy to add my name to her Amendment 53. I shall not repeat the arguments that I made in Committee on 8 July, not least because the Minister has accepted many of those points.

However, there remains the one unresolved issue, to which the Minister referred, and that concerns Section 100(3)(b) of the Anti-terrorism, Crime and Security Act 2001. The Minister said that she wants to keep that in being and the purpose of our amendment is to take it out. In effect, subsection (3)(b) states that when a BTP officer is off-jurisdiction he or she has to decide whether to act and use the power of arrest. That involves a judgment call—indeed, the Minister used those words. This aspect has been addressed very directly by the chair of the British Transport Police Authority, Millie Banerjee, who wrote to the Minister about subsection (3)(b) last Friday. She wrote:

“This subsection requires BTP officers to work through a complex legal test, often in quick time, which can result in uncertainty, challenge and delays in responding to the public.

I illustrate the problem with subsection (3)(b) with a practical example on metal theft. BTP is the ACPO Lead Force for metal theft and officers regularly conduct visits to scrap metal dealers’ yards, which are outwith BTP jurisdiction, to inspect their record keeping. This enforcement activity has a proven deterrent and detection function which has been a critical factor in the substantial reductions in metal theft crime on the railways and other sectors across the UK.

Although BTP officers exploit intelligence to target their visits, there will often be an absence of specific grounds to suspect that stolen railway metal will be at the yard. In the strictest sense of the current legislation, under subsection (3)(b), BTP officers should arguably call upon local Home Office colleagues to attend the yard and exercise any relevant powers. This would be duplication of effort and is hard to justify to a public who understand the pressure on police resources. In reality BTP officers exercise the relevant powers but are having to make their action fit the complex provisions of this subsection. This is not in the view of the Authority satisfactory and introduces risk of legal challenge where none should exist. It is to the detriment of the fight against metal theft”.

The Minister is apparently concerned that if this provision were removed the BTP would go off-piste, as it were, and not dedicate their time to railway duties. That is simply not true. Indeed, Ms Banerjee answers that point directly:

“Should you feel able to support the removal of subsection (3)(b) I can allay any fears that BTP will stray from its clear focus on the railways. Chief Constable Paul Crowther has committed to reducing crime and disruption on the railways by 20% by 2019. This focus, reinforced by the oversight of the Authority and the requirement to satisfy BTP stakeholders, will ensure that strong control will be exercised with regard to any wider jurisdictional power granted for BTP”.

Very similar points have been made in letters and e-mails to me from Dame Shirley Pearce and Chief Constable Alex Marshall, the chair and chief executive officer respectively of the College of Policing, and by Roger Randall, the general secretary of the British Transport Police Federation. They all say that our original amendment should be supported because it removes the whole of Section 100(3) of the Anti-terrorism, Crime and Security Act 2001. Dame Shirley Pearce, in her letter to me, says:

“The general public expect the police to act and behave consistently and to work to consistently high standards. It is in the public interest that a parity is sought in the way in which police officers are able to discharge their duties and that, wherever practical, obstacles to consistency are identified and removed”.

We know that legal challenges are occasionally made on the issue of jurisdiction. I shall share with your Lordships an extraordinary case from Scotland. On 21 May 2011, there was a disturbance—a fight—at a car boot sale in the car park of a primary school in Glasgow. A BTP sergeant, who was off-duty and not carrying his warrant card, happened to be there and made an arrest for breach of the peace. The arrested person made a legal challenge stating that it was an unlawful arrest because the officer did not have his warrant card on him. BTP had to pay £1,000 in damages and £240 in costs—not a good use of public money when all the officer was doing was acting in the public interest and conscientiously doing his duty when not on jurisdiction.

In conclusion, I am genuinely grateful to the Minister for moving such a long distance since we debated this in Grand Committee. Indeed, her amendment relating to level crossings in Section 172 of the Road Traffic Act is an improvement on ours, since it does not restrict the wording to railway offences. This is good news because road traffic offences occur on service roads and railway property and it is important for the BTP to deal with offences such as drink-driving or dangerous driving on those roads. Our only area of disagreement is subsection (3). I urge the Minister, please, to take account of the views of Members in all parts of this House, of the chair of the British Transport Police Authority, of the chair and chief executive officer of the College of Policing and of the general secretary of the BTP Federation, and agree with our amendment to remove it. I beg to move.

[Lord Jenkin of Roding (Con)]

I echo the noble Lord, Lord Faulkner, in my thanks to the Minister for having gone so far to meet the case made very forcefully in Committee last July. As I said briefly then—I shall not be any longer tonight, I assure the House—I found the arguments that the noble Lord, Lord Faulkner, advanced on that occasion to be absolutely incontrovertible. Like him, I am disappointed that the Minister has not gone the whole way.

I listened with great care to what the Minister said about why the Government have found it necessary to retain those restrictions, as they indeed are, on the British Transport Police’s activities in Section 100(3)(b) of the 2001 Act. Frankly, I find the suggestion that a British Transport Police officer will somehow be distracted from his primary duty of policing the railways because he finds it more exciting to do things, as it were, off his main beat to be a frivolous argument. I am sorry to sound a bit condemnatory, but I simply cannot see how it could conceivably happen.

I have not seen any of the correspondence that the noble Lord, Lord Faulkner, has had and from which he quoted a few moments ago. However, one of those letters made it absolutely clear that the writer, a very senior officer in the British Transport Police, regarded this as so unlikely that it ought not to be seriously considered. That is exactly my view and I am very sorry to hear my noble friend advance that as an argument.

One knows that behind this is the long-standing argument between my noble friend’s department and the Home Office, which is responsible for the constables in the rest of the country, except of course in London. However, to try to compromise with that department on this issue is something that no noble Lord in this House or Member of Parliament in another place would feel was reasonable. For that reason, I very much hope that my noble friend—I recognise that we are not going to vote tonight; it would be a slightly weird Division—will reconsider this between now and Third Reading and bring forward another amendment, or, as the Bill was first introduced in this House, consider with her colleagues whether she might put this nonsense right in another place. Having got this far with something for which Parliament has argued and waited over many years, falling at the last fence would be very sad indeed. I beg my noble friend to recognise that her argument does not carry much weight and she should face up to the Home Secretary and say, “I’m sorry, we are going the whole way. We are going to repeal paragraph (b) also”.

--- Later in debate ---

[Baroness Kramer]

My Lords, I point out to the noble Lord, Lord Davies, that his Government failed to change any of these clauses and we are now getting to grips with a long-standing issue.

I first pick up on the issue raised by the noble Lord, Lord Faulkner, who described a case that obviously outraged the House. That is exactly a situation that can no longer stand, given the amendments that the Government are bringing forward. An officer would not be in the position in which, in the absence of a warrant card, he would be vulnerable. The amendments that we have brought forward would precisely deal with that issue for an officer in plain clothes using a warrant card who was attempting to prevent an injury. That incident is clearly covered.

I suppose that I have been in the department for only a year, but I am conscious of the constant attempts to raid the BTP for many other services, and the view of a lot of the forces across the country that the BTP ought to be an available resource. We are absolutely clear that changing the language in the way in which the noble Lord, Lord Faulkner, suggested would make this a far easier task. It is crucial for the future of rail transport that there is a genuinely dedicated force. I point out again that it is paid for by the railway industry, which adds to its concern that its force would be available to operate in any neighbourhood on any issue. I ask it to make a judgment; police forces make judgments the whole time, and the judgment that we are asking the force to make is well within the scope of its competence on the few such occasions that arise, without the general change that has been requested. I think we have gone as far as we can on this and I also ask your Lordships to rethink the position they are taking, because it is genuinely important that we keep the British Transport Police dedicated to the railways in the way that it is at present.

[Lord Faulkner of Worcester]

My Lords, I naturally accept the Minister’s point. Nobody is a greater defender of the BTP’s role in policing our railways than I am. For her to say that none of this was undertaken during the years of the previous Government is a bit unfair to those of us who have been raising the issue of the role and jurisdiction of the BTP since, in my case, 2001. Putting that to one side, the officer in the punch-up in the school playground would still have had to make the judgment call required in subsection (3)(b). A clever lawyer could easily say he acted without thinking properly. That would not have applied to any other officer and subsection (3)(b) is unacceptable because it treats BTP officers differently from civil police officers and puts them on a different level. As public policy, that is not in anybody’s interest.

I am obviously not going to invite the House to come to a decision on this tonight and I will ask permission to withdraw the amendment to the Government’s amendment. However, I very much reinforce the arguments made by the noble Lord, Lord Jenkin of Roding—I thank him for them—which were very persuasive, particularly in suggesting to the Minister that she might use the few weeks between now and Third Reading to consider whether the Government can come back.

There is one other matter to which I did not refer in my speech because I was a little taken aback by what the Minister said in hers in relation to Scotland and its attitude to the Bill. Will she be kind enough to write to me about that decision, which I had not heard about before and which came as a bit of a bombshell tonight? Could she explain what that piece of legislation means in terms of BTP operation in Scotland? Obviously, the law relating to level crossings is fine and we have no disagreement on that. However, it strikes me as very odd indeed that Scotland may not be willing to accept such a simple change as the one we are proposing.

In the mean time, I beg leave to withdraw the amendment.

Amendment 53A (to Amendment 53) withdrawn.