Smith Commission Principles: Railway Policing

Debate between Lord Faulkner of Worcester and Lord Dunlop

Monday 18th April 2016 Lords Chamber

[Lord Faulkner of Worcester]

To ask Her Majesty’s Government how they will ensure that the fifth principle contained in the report of the Smith Commission that the package of powers agreed through the Smith Commission process “should not cause detriment to the UK as a whole nor any of its constituent parts” will be complied with when railway policing is devolved.

[The Parliamentary Under-Secretary of State, Scotland Office (Lord Dunlop) (Con)]

My Lords, the Scotland Act devolves responsibility to the Scottish Parliament for the policing of railways in Scotland, and we are working with the Scottish Government to understand their plans. Maintaining high levels of service across the UK is at the forefront of our planning for an efficient and effective transfer of functions. There is absolutely no reason to think that devolution will degrade the level and effectiveness of railway policing.

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[Lord Faulkner of Worcester (Lab)]

My Lords, that is all very well but this is a Question about the no-detriment principle in the Smith commission report. The British Transport Police Authority made it clear in its evidence to the Public Audit Committee of the Scottish Parliament that the safety and security of railway policing in England and Wales could be endangered and its costs increased if that force no longer had a role in Scotland. Surely there can be no greater example of a no-detriment principle applying than that one. Particularly bearing in mind what the noble Lord, Lord Dunlop, said at the Report stage of the Scotland Bill when he shared with us the news that the Conservative Party, in its manifesto for the Scottish elections, had decided that the BTP should continue to police the railways in Scotland after those elections, surely he could be a little more forthright in standing up for the no-detriment principle.

[Lord Dunlop]

My Lords, the noble Lord is absolutely correct that the Scottish Conservative manifesto supports the devolution of BTP functions in Scotland, as do all the parties that signed up to the Smith agreement. The principle of devolution is that the Scottish Government should be held accountable by the people who elect them, and I assure the noble Lord that the Scottish Conservatives and their leader, Ruth Davidson, will be very vigorous indeed in holding the Scottish Government to account for their decisions on the BTP in Scotland. To take the other aspect of the noble Lord’s question, if the Scottish Government decide to proceed with plans to integrate BTP functions within Police Scotland, the UK Government will of course work very closely with the Scottish Government to put in place robust operational arrangements to ensure that there is no detriment to any part of the United Kingdom.

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[Lord Dunlop]

There are already collaborative arrangements in place between the BTP and Police Scotland. I think that as we put in place the new arrangements we will be looking to ensure that we build on those collaborative arrangements to ensure that there is a seamless operation of what is a very important service for the whole of the UK.

[Lord Faulkner of Worcester]

But who, my Lords, is going to decide whether the no-detriment principle applies? Is it going to be the British Parliament or the Scottish Parliament?

[Lord Dunlop]

As regards this issue, I go back to what my noble friend Lord Empey said. I am not sure whether he is in his place today, but he has great experience of these matters in Northern Ireland. He was absolutely confident that we could put in place effective working arrangements. However, he did caveat that by saying that it would take time to achieve that. It is certainly our view and expectation that it would take two to three years to ensure that there is a proper transfer of these functions.

Scotland Bill

Debate between Lord Faulkner of Worcester and Lord Dunlop

Wednesday 24th February 2016 Lords Chamber

[Lord Dunlop]

I will repeat what I said: it is entirely possible to put in place the necessary arrangements to ensure that the service remains as effective as it is today.

[Lord Faulkner of Worcester]

My Lords, this has been an extraordinary debate. The hour approaches midnight and we have been debating the British Transport Police in Scotland for more than an hour, with an extraordinary range of very well-informed, powerful speeches on these amendments. I thank everybody who has taken part in the debate.

Obviously, there is not time to go through each of the speeches but the most important point the noble Lord, Lord Forsyth, made was that this is a United Kingdom issue, not just a Scottish issue. The noble Earl, Lord Kinnoull, talked about the no-detriment principle. I do not think that we got an answer on that from the Minister. The noble Earl also asked for a commitment to some form of government amendment at Third Reading; we were told that that will not be offered.

I should thank the noble Lord, Lord Empey, for bringing this issue up in the first place in Committee because it was not spotted in the other place when the Bill went through there. It was his tabling of the amendment in Committee that allowed us all to realise what was actually being proposed for transport policing in Scotland. His point is that this is an attempt to fix a problem which does not exist and that there is nothing wrong with the operation of transport policing at the moment. To make these changes is free of neither risk nor cost.

The noble and learned Lord, Lord Wallace, talked about the functions not being properly safeguarded and the possibility of security being diminished. The noble and learned Lord, Lord Mackay, made a very important point about what the Smith commission said on the subject, which is not consistent with what is being proposed in the Bill. My noble friend Lord Berkeley, using his great experience from the railways, talked about the specialism of the British Transport Police.

I would like to be able to say that the Minister came some way towards meeting all these very important points but I honestly do not think that he did. If we allow the Bill to go through in its present form, and do not make our voices clear tonight that we are very unhappy with what is to happen not just in Scotland but to transport policing throughout the United Kingdom as a result of this change, we will regret that. With great reluctance at this very late hour, I therefore beg leave to test the opinion of the House.

Scotland Bill

Debate between Lord Faulkner of Worcester and Lord Dunlop

Tuesday 19th January 2016 Lords Chamber

[Lord Dunlop]

What the Smith commission meant is precisely what it said. If my noble friend will allow me to continue, I will expand upon that. To return to the point that was raised about the Edinburgh trams, I understand that they are not obviously policed by the BTP.

The Smith commission agreed that the functions of the BTP in Scotland should be a devolved matter and, as the noble Lord, Lord McAvoy, has already said, that was supported by all five of the political parties which took part in the commission, including the parties opposite. Clause 42 devolves legislative competence in relation to railway policing in Scotland to the Scottish Parliament by adding an exception to the Scotland Act 1998 for the policing of the railways and railway property. Clause 43 specifies the BTP bodies as cross-border public authorities. The designation of the BTP bodies as cross-border public authorities will result in functions relating to those bodies being modified so that future appointments to the BTP bodies will be made in consultation with Scottish Ministers. Other functions with regard to the BTP bodies will similarly be exercised in consultation with the Scottish Ministers unless their effect on Scotland would be wholly in relation to reserved matters.

The designation of the BTP bodies as cross-border public authorities is to ensure continuity before the Scottish Parliament legislates for policing of railways in Scotland. Enacting the clause will not impact on the current operational arrangements for policing of the railway. The BTP will continue to police the railways in Scotland until such time as a transfer of functions is effected. If and when the Scottish Parliament exercises the new legislative competence conferred by Clause 43, it would be necessary that the BTP bodies be designated cross-border public authorities so as to facilitate the appropriate transfer of BTP property, staff, liabilities and contracts in Scotland.

The noble and learned Lord, Lord Hope, asked for other examples of cross-border authorities; one that comes to mind is the Forestry Commission, although I will write to him with other examples.

Upon the completion of the transfer of policing of railway functions to the new Scottish model devised by the Scottish Government, the designation of the BTP bodies as cross-border public authorities will be removed and the BTP will exercise functions of policing for railways only for England and Wales.

[Lord Faulkner of Worcester (Lab)]

On that point, can the Minister describe to me what will happen with trains that travel between England and Scotland, of which there are hundreds a day? Does the policing of that train change at the border? Does the British Transport Police no longer have any responsibility for ensuring order on that train, and does it then have to rely on Police Scotland to do that?

[Lord Dunlop]

We anticipate that the BTP will continue to have limited functions in that scenario; I will come on to address that later in my remarks.

Amendment 53A was tabled by the noble Lord, Lord Empey, who spoke with great authority from his Northern Ireland experience. Regardless of how the Scottish Government legislate with regard to railway policing, the British Transport Police and the British Transport Police Authority will continue to exist in England and Wales. There is no question of abolishing or dissolving the British Transport Police. We also anticipate, as I have just said, a limited but continuing role for the BTP in Scotland, particularly in relation to cross-border services—a point raised by the noble Lord, Lord Faulkner—working alongside the new Scottish model. There is already existing co-operation and collaboration between the BTP and Police Scotland. The BTP uses Police Scotland police stations, for example, and Police Scotland can be first responders to rail-related incidents. Inter-force co-operation will be one of the many important issues to be agreed between the UK and Scottish Governments before the BTP’s current role and function are changed. The need for this sort of collaboration between different police forces is not confined to railways; it happens every day in other fields.

It is the BTP’s Scottish division—its functions, staff and contracts—which would be transferred if the Scottish Government decided to implement a new operational model, and which would be legislated for by the Scottish Government once the necessary legislative competence had been provided through Clause 42 in order for us fully to deliver the Smith commission agreement.

The debate this evening has highlighted the complexities. Both Governments are aware of the complexities of such a transfer and of the need for close collaboration and engagement to work through the details. I reassure your Lordships that this work is already under way and we will keep the House informed as it progresses. The starting point is for the Scottish Government to determine the operating model and to legislate for future policing of the railways. The aim of both Governments, working together, is to ensure an orderly transfer of property, assets and liabilities. Clearly the UK Government will work to ensure continued co-operation during the transfer and afterwards to achieve the best possible outcome. Many of the issues raised by noble Lords this evening—in particular, the noble and learned Lord, Lord Wallace—will be determined as part of this process.

The need to maintain high levels of service should be at the forefront of any planning for an efficient and effective transfer of functions. As the noble Lord, Lord Berkeley, mentioned, BTP officers have a wealth of knowledge and important skills, which it will be important to retain and ensure are reflected in any new Scottish structure. The expectation from the discussion we have had so far with the Scottish Government is that a specialist transport policing unit will be established within Police Scotland. The transfer of experienced officers from the BTP will help ensure that these valuable capabilities are appropriately shared, and we will continue working with the Scottish Government during this important period.

I note what my noble friend Lord Forsyth said about Police Scotland, but I make it clear that, as is consistent with the nature of devolution, it will be for the Scottish Parliament to legislate in relation to the policing of the railways in Scotland and for the Scottish Government to decide how they want the new structure to operate in practice. I think that this echoes what the noble Lord, Lord McAvoy, said. The Scottish Government will be held to account for that by the people of Scotland, as they are currently being held to account for the performance of Police Scotland. That is leading to a review of the governance of Police Scotland.

The noble Earl, Lord Kinnoull, talked of teething problems. The importance of getting this right, both for maintaining the standards of railway policing in Scotland and for preventing any adverse effect on the BTP regarding the rest of England and Wales, will not be overlooked. Given its importance, we expect the transfer of the BTP’s property rights and liabilities to take between two and three years.

The noble Lord, Lord Empey, raised an important practical point when he asked whether the BTP would have powers to operate and arrest in Scotland, should it need to follow a criminal across the border. It is a point that I am confident both Governments will discuss and on which they will agree an effective approach as part of the transfer and set-up of new collaborating arrangements so that criminals can effectively be pursued across the border.

I accept that the devil will be in the detail. However, there is no reason in principle why the high standards of railway policing in Scotland cannot continue under a devolved model, and the Government will continue to work with the Scottish Government to achieve this. For those reasons, I urge noble Lords not to press their opposition to the clause.