Scotland Bill

Lord Forsyth of Drumlean Excerpts

Tuesday 19th January 2016 Lords Chamber

[Lord Lyell (Con)]

I declare a case of anger solidarity with the noble and learned Lord, Lord Davidson of Glen Clova. He mentioned parking in Edinburgh to me at the weekend. But I notice, and your Lordships will see, that the amendment refers to “stopping on verges, etc”. That might be part of the Road Traffic Act 1988 but since the noble and learned Lord and I are both much acquainted with that great artery of Angus, the B955, which crosses both his parish and mine, I wonder quite what “stopping on verges” can be.

I quite understand that there could be problems in Edinburgh or urban districts with guide dogs and the rest on the pavements, but I also wonder whether there is a problem in Scotland which there is not in England. Perhaps when my noble friend the Minister winds up, he could explain whether there is a difficulty in Scotland, let alone in Edinburgh. For goodness’ sake, let us not get into speaking in Doric or Gaelic—let alone in the wilds of Angus—but is there a problem and can he sort it out in my mind? Certainly, as far as the noble and learned Lord, Lord Davidson, and I are concerned, there is a strong case of anger solidarity, and I hope my noble friend can resolve it.

[Lord Forsyth of Drumlean (Con)]

My Lords, perhaps I could add to the anger solidarity by disagreeing with my noble friend and the noble Lord, Lord Foulkes. The Gaelic language is an important part of Scotland’s culture. Indeed, when I was Secretary of State, I did a great deal to promote it. The whole point of devolving power to the Scottish Parliament, if we are going to allow for differences on matters such as road signs, is so that it can do stuff like this.

The noble Lord is constantly telling me about the importance of being sensitive to the fact that the Labour Party has been destroyed in Scotland, that people have voted for the SNP and we have to take account of those cultural differences, and why devolution is important. He cannot will the means and then complain about the results. The reason that Scotland is covered in signs in Gaelic is the same reason that Ireland is covered in signs in Gaelic. It is a wish on the part of nationalist Administrations to reflect the national culture. In that respect, I agree with them entirely. The more it creates interest in and understanding of Gaelic, and the more people realise the extent to which the Highlander should be on our conscience, the better, as far as I am concerned. I support the amendment.

[Lord Sanderson of Bowden]

My Lords, I think there ought to be a bit of border solidarity here. I agree entirely with the noble Lord, Lord Steel, about the ability to have agreement north and south of the border on various matters relating to roads. For example, if you go through one village, as I do on my way to the train, there is a 30mph limit—that is in England, of course—and in Scotland it is 40mph. In the context of this amendment, which I agree with, we want to be sure that any changes that are made should ensure that it is not going to be too difficult for us to cross the border.

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[Lord Empey]

My Lords, before I commence, perhaps I could just follow up on a serious note the point made in the last discussion. I think that we are all in favour of the promotion of minority languages, but the danger we have seen is that a genuine love of a language has been seized upon and used as a badge of difference. That is the risk attached to all these things.

I tabled this probing amendment because I was slightly puzzled and concerned at the potential direction of travel that could be achieved by the outworkings of this clause. First, as I understand the Bill at present, it does not in and of itself alter the existing arrangements for policing railways and transport as set out, but it provides the potential for a subsequent point at which the Scottish Parliament and Government could take over responsibility for the functions of the British Transport Police, its chief constable and senior officers and of course for its equivalent of a police authority. We all know that we live in dangerous times; I just wonder whether we are trying to fix a problem that does not exist here.

I am not aware of there being a series of complaints about the conduct of the policing of transport in Scotland. As far as I can see from the figures, the police are bearing down well on crime—crime on railways, as I understand it, is diminishing in Scotland—but there are two or three areas that would concern me. First, where policing functions are devolved to the Scottish Parliament, it is natural that there will be an interest in all matters pertaining to police, but I think we would have to acknowledge that transport policing is not a geographically based function. Indeed, it is the very opposite of that, and a specialist series of skill sets are required to perform its functions. One of the most significant of those skills is of course counterterrorism, because transport links are used regularly by terrorists to carry out their activities. Sadly, we have seen in the last few months in Belgium and France, as we saw previously in Spain and other countries, attempts being made to use the transport network to promote terrorism. So people who have an expertise in that area and are used to dealing with it in transport terms have certain skills.

Sadly, another thing that has happened is that transport networks have attracted people who have sought to end their lives. That can also cause huge distress and great disruption. We also know that people traffickers and other elements use transport networks to fulfil their functions and carry out their nefarious activities. I am a little concerned that here we have a service that is being performed and, as far as I can see, performed well. I am not aware of complaints about the operation of the British Transport Police, as they apply to Scotland. We can also tell that when certain crimes are committed, the precise jurisdiction in which they are carried out can be unclear. We are talking about a border which is not immediately obvious to a passenger.

I would also like the Minister to tell the Committee, in the circumstances where the Scottish Parliament decided to take over responsibility, would a British Transport Police officer have the power of a constable in Scotland? Would that person be able to function on the Scottish side of the border, in circumstances where Police Scotland would be the authority in charge and responsible? Is there not the potential for huge confusion here? It is important that the Committee teases this out at this stage so that when we come to Report and so on, we have clarity. Are we trying to fix a problem that does not exist?

There is a unique skill set in policing not only the railway network itself but the stations and associated estate that go with it. It is difficult for a service that has existed for many decades, and built up that expertise, all of a sudden to transfer that expertise to a geographically based police service that quite naturally thinks and deals with things in a totally different way. Given also that we are talking about a GB-wide network which respects no border—in so far as railways, in particular, pass through borders without any distinction between one area and another—surely there is some sense in having consistent and coherent policing of that network.

That is not to say that the Government and Parliament in Scotland would wish to exclude themselves from any interest in these matters—of course they would be interested, and quite rightly so—but what purpose is being served by this if there is no evidence that a problem actually exists? If there is no evidence that crimes are going undetected or that there is a major failure here that needs to be addressed, I would just be concerned, as we had some experience of this in our own jurisdiction. We had to wait for over three years before we could get political agreement to get the National Crime Agency going in Northern Ireland because people had a political issue with it—not a policing issue with the NCA but a political one. In circumstances that included people trafficking, smuggling and potential terrorists coming and using our area as a backdoor into the United Kingdom, it was not the policing issue that was at the top of the agenda.

Why has this particular issue been given such prominence? It is inconceivable that proceeding to change and hand over these functions to Police Scotland would have no potential effect on the United Kingdom. This is not something that has no implications for the rest of us, for the following, simple reason. If criminals originate on the Scottish side of the border, what are the co-operation and communication issues going to be? Are we suggesting that a Scottish police constable would be on the train as it left Scotland, and does that mean that there has to be a British Transport Police officer when it gets to Cumbria in charge of an investigation or tracking a criminal or a criminal gang? These are the sorts of questions that we have to ask, and this Committee is the right place to ask them.

Virtually all parties are committed to the implementation of the Smith commission, and I am not in any way trying to stand in its way, but where there is an issue which could affect all of us, it is fair to say that we are perfectly entitled in this Parliament to ask these questions and to seek explanations. I beg to move.

[Lord Forsyth of Drumlean]

My Lords, I rise to support the amendment of the noble Lord, Lord Empey, as this is a crucial proposal in the Bill. The origins of it were in the Smith commission’s report, following which the Government said:

“How rail transport is policed in Scotland will be a matter for Scotland once the legislation is passed”.

I noted that last year Scotland’s Justice Minister said:

“It’s been the Scottish government’s view that this would be better if it was integrated into Police Scotland given that it would sit alongside our national police service”.

At one time, we had local police forces which commanded respect and were extremely efficient, and a system that worked very well in Scotland. My old constituency in Stirling, where I live, had the Central Scotland Police, which was the smallest in Scotland; there was also a Highlands police force. Those forces were able to deal with issues while understanding the culture, background and nature of the areas to which they were responsible. That worked extremely well, but the system has been smashed up with the creation of this national Police Scotland force. It was going to save a lot of money, but the result has been a complete disaster. We lost the first chief constable in a series of controversies over arming the police, the inefficiency of the service and various other matters. We have seen infighting and disruption in the governance body responsible for Police Scotland, with the resignation of the chairman. The whole thing has been a disaster from every point of view.

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[Lord McFall of Alcluith (Lab)]

Does the noble Lord not agree that one of the real problems a number of years ago was when they got rid of the local police stations and introduced a centralised call centre? Now you phone a central place in Scotland, which is unaware of the locality and the issues in it, and where there are complications with communications. I saw that when I was a Member along the road there. That was the start of the real problem, which led to this centralisation. The more we get back to local police stations and local reporting, so that we can go into our stations and report issues where they understand the local area, the better. We are on the wrong track.

[Lord Forsyth of Drumlean]

I entirely agree with the noble Lord. He is absolutely right. In my old constituency of Stirling, we used to have a police station in my own village; we had them in Balfron and elsewhere, but they have all disappeared. We now have two wildlife policemen who are going around trying to find someone to prosecute for something—without much success, I am told, and at vast expense. All of this is absolutely in the face of what local people say they want, which is local policing and local involvement. One of the great ironies of this whole devolution project is that it was supposed to be about returning power to local people, but the Scottish Parliament seems to have been absolutely concerned to centralise everything and to take a very authoritarian view.

This proposal to break up the British Transport Police —I am now on the amendment—is an absolute classic example of the failure of thinking which has brought such disaster to Scotland’s police force. British Transport Police has been there certainly since the 1850s, when it was realised that a railway would enable criminals to move around the country and that it was necessary to have a police force on the trains with the authority to act wherever its officers were. That system has worked brilliantly; it is one of the great success stories.

The truth of the matter is that the reason that the nationalists do not want to have the British Transport Police is because of the “B” in British Transport Police. Perhaps we could just call it something else—perhaps we could call it the “National Transport Police” —and then we could get agreement that it makes sense to have a cross-border force run on a cross-border basis. It has done the most brilliant work, not all of it publicised for obvious reasons, on drugs hauls that have been taken from trains at Glasgow that have come from the south, on the movement of terrorists and others who threaten us, and on the integration of the Glasgow underground with the London Underground and the whole of the transport system. The BTP is a group of people organised in four divisions—there is a Scottish division—who understand and have the expertise to deal with the intricacies of policing a transport system. That is a success, and for it to be smashed up would be crazy.

I know that the Minister will say that the amendment is unnecessary and the clause does not actually provide for the breaking up of the British Transport Police, but we know that that is what the Scottish Government intend to do. In doing so, they will undermine not just the security of people in Scotland, as the noble Lord, Lord Empey, said, but the security and enforcement of law in the United Kingdom as a whole. This is not a matter which should be subject to devolution; this is a matter of national, United Kingdom interest. I very much hope that the Government will drop it from the Bill. The rather throw-away line that we got from the Smith commission, which showed no understanding of what the British Transport Police has been doing, is, to say the least, a disappointment.

The fact that the Justice Minister in Scotland should announce that he wanted to get rid of the British Transport Police and integrate it into the Scottish police with no consultation whatsoever, and in the face of strong opposition from former commanders in Scotland, who actually did the job, but who are ignored, is unacceptable. I very much hope that the Government will feel able to accept the noble Lord’s amendment or, even better, drop the whole thing altogether.

[Lord Wallace of Tankerness]

My Lords, my noble friend Lord Stephen and I tabled clause stand part debates on Clauses 42 and 43 because it is important that the Government should justify to the Committee why they are taking this step, not least given the remarks of the noble Lords, Lord Empey and Lord Forsyth. After all, I am told that the British Transport Police has reduced crime on Scotland’s rail network by 56% since 2005, compared to an overall reduction of crime in Scotland of 38%, so it is clearly doing something right.

Paragraph 67 of the Smith commission report states:

“The functions of the British Transport Police in Scotland will be a devolved matter”.

That is a slightly different thing from saying that the British Transport Police shall be devolved. We really ought to have an explanation from the Government as to why they have chosen this form of devolution. It is complex. No doubt the Minister will give a fuller explanation, but until legislative competence has been devolved, which is what I understand Clause 42 is intended to do, the Scottish Parliament cannot make provision for what will happen and the British Transport Police will continue as a cross-border public authority under Section 88 of the Scotland Act 1998. The Minister may want to indicate what that means in practice. Does it mean more than that UK Ministers are obliged to consult about appointments and the like and that reports must be laid before both the UK Parliament and the Scottish Parliament?

The Scotland Office briefing note that was given to noble Lords at a very worthwhile briefing way back in November said that this was a first step. We want to know what the next step and subsequent steps will be. Considerable concern has been expressed about this provision.

It is no secret that I am a pretty strong home ruler, but I cannot say that the devolution of the British Transport Police was ever near the top of my agenda of things that needed to be devolved. One wonders where it came from. Perhaps the secret is in what the Scottish Justice Minister said, in what sounds very much like empire-building, whether on his part or that of Police Scotland, to try to subsume the British Transport Police. That is the concern: that the British Transport Police is to be subsumed into Police Scotland. As the noble Lord, Lord Forsyth, indicated, Police Scotland seems to have enough on its plate at present, although I agree with him that the new chief constable must be given the opportunity to try to restore both morale in his force and confidence in the public.

The speech of the noble Lord, Lord Forsyth, was very passionate, raising the constitutional issues of having a single national police force. I just wish that he had spoken to the Conservative Party in the Scottish Parliament—and that the Labour Party in the Scottish Parliament had taken cognizance—because the Liberal Democrats were the only party in the Scottish Parliament that stood against the creation of a national police force.

[Lord Forsyth of Drumlean]

I did, but, for extraordinary reasons, it decided not to take my advice.

[Lord Wallace of Tankerness]

Plus ça change, plus c’est la même chose.

I am uncomfortable about the arguments about what might happen when devolution takes place—that is an argument for a different forum—but clearly, devolution is not the same as abolition. As I said, the Smith commission said that it should be the functions of the British Transport Police that are devolved. The British Transport Police Federation made a submission to the Scottish Parliament’s Devolution (Further Powers) Committee in which it set out a number of options.

One option consisted of proposals of a legislative administrative nature, which would devolve policing and embody in statute arrangements by which the Scottish Government could give direction to the BTPA and specify direction of railway policing, but the model would provide that the chief constable of the British Transport Police would engage with Scottish institutions in the same way as the chief constable of Police Scotland does at the moment. Responsibility for pensions, employment contracts and defraying the cost of policing to the rail industry would remain with the British Transport Police Authority, although the Scottish Police Authority would have great involvement at strategic and planning level. Another option was to achieve devolution by administrative rather than legislative means, maintaining the responsibility on the BTPA to pass on the cost of the force to the rail industry, as well as responsibility over employment matters and pensions.

The Government owe the Committee an explanation of why they adopted this particular form of devolution, given that it was the functions of the British Transport Police rather than the police themselves that the Smith commission recommended be devolved.

We should not lose sight of what the British Transport Police is and what it brings to the service. Interestingly enough, it is not responsible to the Home Office; its sponsoring ministry is the Department for Transport. That is important. It means that it has particular training and skills which are different from the rest of the police force. Can we be assured that in any scheme for transfer, particular provision will be made to maintain those skills—for example, dealing with level crossing incidents and trespass? We have heard about drugs and terrorism—although I know that those who work within Police Scotland in liaison with the Metropolitan Police and others are very important. The noble Lord, Lord Empey, mentioned investigations of suicides—the tragedies that happen on our rail network.

The briefing made available to the Scottish Parliament committee stated that under Operation Avert, which is being promoted by the British Transport Police at the moment, there has been a 30% reduction in suicide attempts over the past year. That is very valuable, and we need reassurance from the Minister that it will not be lost.

What engagement has there been with staff? I understand that there are about 50 civilian posts and 230 police officers with the British Transport Police in Scotland. They are not tied to the police pension scheme; there is a separate, private pension for British Transport Police officers. Will the provisions safeguard the employment and pension rights of serving officers? What are the financial implications?

The Scotland Office briefing states that the British Transport Police costs are met through charges for the policing services it provides. Will the secondary legislation allow for train companies to be charged? If so and there is an incorporation into Police Scotland, how can we ensure that charges made to railway companies will go to provide the services to the rail network and not just into a pot used to fund other policing services? It is important that we are given some reassurance that they will go to services relating to railways and railway properties.

The notion of cross-border institutions, which appears in the Scotland Act, is sometimes not fully understood. You can have a service and a function that literally is cross-border—that is, it operates in Scotland as well as England but is a reserved matter, not run by a cross-border authority. Here we have, as a result of Clause 43, something that is both; it will be cross-border institutionally and very literally cross-border in what it does. That point was well made by the noble Lord, Lord Empey.

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[Lord Berkeley]

I wonder whether it would be useful to reflect on some of the things that the British Transport Police currently does. Like it or not—and most people like it—we have some very highly congested railways in this country. Sometimes the trains go very fast, and some of them are freight. Here I declare an interest as chairman of the Rail Freight Group. Some of the passenger ones go even faster. One thing that the BTP does is make sure that people do not trespass on the railway, be it in towns, countryside or whatever. There have been one or two occasions when the local police force—I cannot say where—has trespassed on the railways and put their own lives and other people’s lives at risk by not knowing how the trains work. The BTP knows how the trains work.

There is the issue of suicides, as noble Lords have mentioned, and the issue of graffiti. None of us likes graffiti on trains. Where does the graffiti get put on? It gets put on in depots. Now depots are where the trains get parked when they are not used, and they are lovely places to go into because you can hide from people and probably not be seen. Most have fences around them, but some have electrified lines. People who do not know could hurt or kill themselves. The BTP is involved in all that. Then there is the question of passenger crowd control; we have all seen what happens when there is underground congestion, and they stop people going down there. London Underground does it all, but if there is beginning to be a problem and the police feel that they need to be there, they are there—and they know how to deal with crowds. Noble Lords have probably read about some of the issues facing London Underground at the moment, because of the growth in traffic. Wrong action by a policeman or policewoman who does not know the layout of Underground or mainline stations can put lives at risk, again—and that is the kind of knowledge that the British Transport Police has built up over the years. Level crossings and the deaths that happen there—that is another piece of knowledge that the BTP has.

It would be a great shame to lose this specialist knowledge. Railways are different from roads. Everybody knows what happens on roads, and how you try to avoid problems, and the police are very good at it. On railways it is different, and there is a different type of control because if a driver sees something he cannot stop, unless he is very lucky; he has signals but, if somebody is on the line, he cannot stop. That is going to get very nasty, because trains are not designed to stop on a penny.

Having a national force is highly desirable. I agree with all noble Lords who have spoken who have said that they cannot see any reason for changing it. But let us also look at frontiers. There have been problems in the past, which I am sure my noble friend Lord Faulkner will talk about. Can the BTP be in hot pursuit outside railway property? The noble Lord, Lord Empey, mentioned that. It has got better these days, but there is still a problem; there certainly will be a problem if there is a kind of frontier for police between Scotland and England. I travel a lot on the continent, usually on railway activities, and we have all seen the problems between France and Belgium and the apparent lack of communication between the police forces of those countries. The solution that they have come up with is to have police or security checks at all the stations approaching the frontiers. Heaven help us if we have that between Scotland and England; whatever happens in future, we need our trade and our passengers to get through. But the fact remains that, as other noble Lords have said, if there is a need to go across between England and Scotland it needs to be done in the easiest possible way and nobody should stop the expertise of the British Transport Police from being able to do it.

I personally see no reason why this is thought a good idea. The suggestion of the noble Lord, Lord Forsyth—that we should get rid of the word “British” and turn it into a national force—would probably be a good compromise. But I worry seriously whether the BTP’s expertise on railway matters, stretching from John O’Groats right down to Cornwall, would be affected in any way, with the result that the non-specialist police person, doing their best, gets into trouble on the railways in pursuit of whatever they are trying to do.

[Lord Forsyth of Drumlean]

I was not suggesting that the name would be changed—I was saying that it might suit the nationalist agenda.

[Lord Hope of Craighead]

When the Minister replies on Clause 43, could he give us some other examples of cross-border authorities? As I understand Clause 43, it does not abolish the British Transport Police or alter its functions in relation to Scotland; they will be devolved, if Clause 42 is passed. But it would help the Committee if we had some examples of other cross-border authorities, so we can grasp what kind of things we are dealing with. From points that other noble Lords have made, it may be that we are not really comparing like with like in talking about the kind of cross-border authority referred to in the Scotland Act—or the Orders in Council passed under it, presumably under Section 88(5). They are relatively simple creatures, which do not have implications of the nature described by other noble Lords. But some examples of other cross-border authorities would help us to grasp the implications of this very significant clause. I hope I am not asking the Minister to do something for which he is not prepared, but if he could write to us and give us examples at a later stage, that would be very helpful.

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[Lord Forsyth of Drumlean]

Is there not another complication: the fact that the financing comes from the operators? Who pays what would be an interesting discussion. The noble and learned Lord, Lord Wallace, made a point about how one would ring-fence the funds. That would be a good discussion.

[The Earl of Kinnoull]

It would be interesting and very lengthy. I thank the noble Lord for yet another item in the list. I am sure that if one sat down one could prepare a demerger list of horrible problems that would tax people for a very long time.

Earlier, we spoke about the Crown Estate and the fact that it appears that where the Smith agreement has got it wrong there is some wriggle room for making some small changes in the Bill. We came across a couple of them in the transposition from the Smith agreement to the provisions of the Bill that deal with the Crown Estate. I suggest to the Minister that this is another area where there could be some wriggle room. Alternatively, we could go for some sort of fudge with a dual reporting line so there would be a unitary, single British Transport Police with agreed rights of reporting, scrutiny et cetera that went to Scottish Ministers in respect of Scottish staff as well as to UK Ministers at the same time.

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[Lord McAvoy (Lab)]

My Lords, I apologise to the Committee for not being able to be here for start of the proceedings. I was away officially on Whips’ business. I thank my noble and learned friend Lord Davidson of Glen Clova for holding the fort so well.

The Bill makes the functions of the British Transport Police a devolved matter. I associate myself with all the praise expressed for the British Transport Police and its record since 1825. I have no hesitation in doing so.

I have only one comment to make about the contribution by the noble Lord, Lord Empey. I fully understand where he is coming from; he is ad-libbing about the language situation in Northern Ireland. The situation is a wee bit more hopeful than he has perhaps indicated: there are classes in Irish in solid unionist east Belfast, so there are glimmers of hope.

In the opening contribution from the noble and learned Lord, Lord Wallace of Tankerness, he regretted and bemoaned that the Labour Party did not do what he wanted it to do in the Scottish Parliament. I can understand that disappointment and possible resentment, because the Labour Party here had to stand back and watch for five years as the Liberal Democrats backed every vicious and vindictive proposal on welfare put forward by a Conservative Government, with never a word against.

Clause 43 devolves executive competence in relation to the policing of railways in Scotland by specifying as a cross-border authority the British Transport Police Authority, the chief constable of the British Transport Police, the deputy chief constable of the British Transport Police and the assistant chief constable of the British Transport Police. This is in keeping with the Smith agreement, which states:

“The functions of the British Transport Police in Scotland will be a devolved matter”.

That was agreed. I understand also the suspicion and resentment that some Scottish National Party people seem unfortunately to be expressing the desire to get rid of the word “British”. I regret that. If that is their motivation, it does not say much for them, and we should concentrate on the core of the matter.

Designating the British transport bodies as cross-border public authorities means that appointments to the British Transport Police Authority or to the offices of chief constable, deputy chief constable or assistant chief constable will in future be able to be made only in consultation with Scottish Ministers. I know I should not have to say this but it should be on the record: devolution is devolution. You cannot agree the principle of devolution and then object to its effects. Devolution is devolution.

[Lord Forsyth of Drumlean]

Will the noble Lord give way?

[Lord McAvoy]

The noble Lord was a bit slow to intervene tonight.

[Lord Forsyth of Drumlean]

Yes, devolution is devolution, but, as was made clear earlier in the debate, this is a matter that affects the security of the whole of the United Kingdom. The noble Lord knows very well that the SNP Justice Minister has indicated that he wants to break up the British Transport Police. Is the Opposition Front Bench really supporting this in the face of all the evidence that has come from the trade unions and the former leaders of the British Transport Police? Surely that is an extraordinary position for it to take.

[Lord McAvoy]

The noble Lord, Lord Forsyth of Drumlean, always takes a keen interest in the position of the Labour Front Bench. The fact is that the Labour Party supports the Smith commission, as do the Liberal Democrats and the Conservative Government. There is consensus. I know the noble Lord does not really like being described as a consensual figure—he would probably regard it as an insult—but devolution is devolution and it can, will and should be worked out in that atmosphere. I know the noble Lord is a bit puzzled by that, but I have accepted devolution and he should do the same and move on.

In March last year, as the noble Lord has indicated, the Scottish Justice Secretary signalled the Scottish Government’s intention that the BTP’s functions would be transferred to Police Scotland following the passing of this Bill. Once the power is devolved to the Scottish Government, that is of course a decision for them to make and to justify to the Scottish public, the Scottish electorate and the communities within Scotland. Having said that, in recent months there have been a number of legitimate question marks over the way in which the Scottish Government have chosen to manage the resources of the police force in Scotland since we have had this Police Scotland set-up, with police stations being shut—as my noble friend Lord McFall of Alcluith has mentioned—call centres being closed and much-needed front-line police doing back-office functions. I make it clear that this is no reflection of the phenomenal work that our police officers do on a daily basis. However, we should view this as a further opportunity, and I have no objection to it, at the very least to assess all the possible implications of a merger between Police Scotland and the British Transport Police.

[Lord McAvoy]

I thought I had all the trouble in front of me, but I have some behind me here as well.

[Lord Forsyth of Drumlean]

From everyone.

[Lord Faulkner of Worcester]

With lots more to come.

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[Lord Dunlop]

That is a very good question to which I do not know the answer, but I will be very happy to clarify that point for the noble and learned Lord. Noble Lords have raised a range of important issues, and I will try to cover as many of these as I can in my response.

[Lord Forsyth of Drumlean]

Could my noble friend tell the House what he thinks is meant by the words in paragraph 67 of the Smith commission report:

“The functions of the British Transport Police in Scotland will be a devolved matter”?

I read them to mean that the British Transport Police will continue and that its functions will be subject to some kind of oversight by the Scottish Parliament, which is not what the Bill provides for. Does he have a different interpretation?

[Lord Dunlop]

If my noble friend will let me continue, I hope to set out what our approach is here and address some of the points that were raised by the noble and learned Lord, Lord Wallace.

[Lord Forsyth of Drumlean]

Of course I want my noble friend to address the points that have been made, but could he just answer that point? The noble Lord speaking for the Opposition said that whatever the Smith commission report says is written in stone, but what is in the Smith commission is not consistent with that. Can my noble friend explain what he thinks the commission meant?

[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.

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[Lord Dunlop]

I am saying that these clauses provide the framework that allows us to go forward, but the Scottish Government have to decide what operating model they want for the policing of the railways in Scotland. I said that I anticipated that it would take two to three years before these functions were devolved, and that is because all sorts of contracts with third parties are involved here—the noble Earl, Lord Kinnoull, talked about pensions. I do not underestimate the complexity involved and I hope the Committee will understand if I do not have specific answers to all the questions; we will be working with the Scottish Government to clarify them over the next two to three years.

[Lord Forsyth of Drumlean]

I do not understand why the Government are bringing proposals to this House which have not been thought through. It is no good saying, “Oh well, the Scottish Government will need to work this out over the next two years”. Does my noble friend not recognise that this matter affects the rest of the United Kingdom? This is about maintaining a perfectly adequate system of policing upon which the larger proportion of the population depends. My noble friend is a Minister in the United Kingdom Government. If he brings forward legislative changes, surely he has a responsibility to explain to us how they are going to affect the United Kingdom. It is a case of the tail wagging the dog if we say, “This is a matter for the Scottish Parliament to decide. You just pass the legislation and we’ll try to work something out”. Surely my noble friend can see that he is not responding to the points that have been made, which concern the security of the United Kingdom and England in particular.

At the beginning of his speech I asked him a specific question, which has been asked again by the noble and learned Lord. It was whether he thinks that these clauses provide for what is contained in the Smith commission report, which says simply:

“The functions of the British Transport Police in Scotland will be a devolved matter”.

It does not say that there will be legislative control over the British Transport Police or that the British Transport Police will be broken up and there will be a separate Scottish force—it does not say that at all. The noble Lord, Lord Empey, indicated earlier that it would be perfectly possible to give the devolved Parliament some involvement in the British Transport Police without breaking the BTP up.

The clauses we are being asked to support tonight are completely vague as to the outcome. Does my noble friend recognise that he has not responded to the debate and has not dealt with the fundamental question that is being put: what will happen to England and Wales and the rest of the country, and why is it necessary to break up a perfectly efficient organisation in order to meet the requirements of paragraph 67 of the Smith commission report? As the noble Lord, Lord Empey, said, the Smith commission report is not a treaty; it is advice to Parliament and we are discussing a Bill.

[Lord Dunlop]

In answer to my noble friend, the function of the BTP is the policing of railways, which is the subject matter of these clauses and what we are devolving in this Bill. That is what the Smith report stated and we are committed to delivering that agreement.

--- Later in debate ---

[Lord Forsyth of Drumlean]

My Lords, I had no intention of speaking on this matter or detaining the House, but I have to say to my noble friend that, in the light of the reply that we got, I feel that I should make a number of points, without repeating the arguments over and over again. It should be absolutely clear to my noble friend that there is feeling in all parts of the House that what is being proposed is neither consistent with the Smith commission proposals nor desirable in terms of the needs of the rest of the United Kingdom to have adequate security and proper policing of our transport systems, particularly for cross-border purposes.

During the debate on the amendment from the noble Lord, Lord Empey, my noble friend was asked to give examples of cross-border authorities. He suggested in his reply that the Forestry Commission was an example of a cross-border authority. I can think of others concerned with the regulation of nuclear activities in the United Kingdom, for example. I am very concerned that a precedent is being set here that devolution means that, in Scotland, it is possible for decisions to be taken and devolved that have implications for the rest of the united Kingdom and which we just have to go along with because the Smith commission recommended it or the Government’s interpretation of the Smith commission’s proposals are that this legislative provision should be made.

I have no objection whatsoever to a provision that enables the Scottish Government and the Scottish Parliament to have some involvement in the functions and governance of the British Transport Police, as the noble Lord, Lord Empey, suggested. Indeed, I think that that would be highly desirable, if only to end the thought that this is something that should be conducted on a national, individual basis between the constituent parts of the United Kingdom. The joy and glory of the British Transport Police—which after all has done pretty well for nearly 200 years, as I discovered during the course of the debate—is that it operates as a cross-border United Kingdom body.

I gently suggest to my noble friend that he gives some thought to this in the context of his responsibilities as a Minister of the United Kingdom and comes forward on Report with proposals that meet the need to involve the Scottish Government without actually resulting in the destruction of the British Transport Police or its powers and ability to operate in a cross-border way. If he does not do so, I for one will join those who wish to go through the Division Lobbies to substitute something else. That would be very unfortunate. At the moment, our only option is to take these clauses out of the Bill altogether. That would create a difficulty for the Minister and for the noble Lord, Lord McAvoy, who has become the chief protagonist of the idea that everything in the Smith commission report has the status, as the noble Lord, Lord Empey, said, of a treaty that cannot be changed because it was agreed between the Governments.

[Lord McAvoy]

I made no such suggestion. If the noble Lord would stop looking astonished at every second word that I say, he may understand what I am saying. The Smith commission was a hard process where five parties took part. He is decrying and insulting the good faith of the people who arrived at that conclusion. They spent a long time on it and went into a lot of detail. I believe that they did that in good faith and he should stop denigrating the people involved. The proposal was put through that process and arrived at after long consideration, and I support it.

[Lord Forsyth of Drumlean]

I am not denigrating anybody, but I gently remind the noble Lord that quite a few of those who took part in the process are no longer involved in parliamentary affairs. He says that it was agreed by all the parties, but none of the parties was consulted about this. This was a deal and a negotiation. I wager him a bottle of champagne that very few of the people involved in negotiations even knew that the British Transport Police was largely funded by the transport operators. I suggest that that is the case. The complexities involved would be unknown to them.

The noble Lord knows as well as I do that a problem was created after the referendum. People were desperate to find things to devolve. I can just see people saying, “Oh yes, the British Transport Police can be devolved”. The people concerned would not have had a clue about the intricacies of how the British Transport Police was funded. Perhaps the noble Lord is smarter than I am and perhaps he is aware of that, but as Secretary of State I was not aware of the detail of this until I discovered the need to look into it as a result of this amendment. I do not believe for a moment that those people acting in good faith knew the consequences of what was proposed.

Actually, the Smith commission does not require the Government to break up the British Transport Police or to act in the way that is provided in this clause. I ask my noble friend to think again please and perhaps talk to the Scottish Government. There is a compromise to be had that will meet the needs of both sides of the border and the needs of the country as a whole in respect of security—at a time when national security is absolutely at the top of the agenda and the security of our transport systems must be the number one issue of concern.

[Lord Faulkner of Worcester]

Does the noble Lord agree that consultation of the sort that he just described, which I would warmly welcome seeing established, should also include members of the British Transport Police themselves, the British Transport Police Authority and the British Transport Police Federation, Network Rail, which funds the larger part of its operation, and the train operating companies? There needs to be a proper discussion about the role of the British Transport Police in a devolved Scotland. That has not taken place at all so far.

[Lord Forsyth of Drumlean]

Indeed, that is why I am so distressed by my noble friend’s response and the fact that it has not. We appear to be operating on the basis that whatever is in the Smith commission report, as interpreted by the Scottish Government, is what we do, and nobody has thought through the consequences. I hope before we come to a later stage of the Bill that the noble Lord’s suggestion is taken on board and my noble friend comes back with something that we can support. It would be very unfortunate indeed if this House were put in a position where it had to vote against the clause.

The noble Lord, Lord McAvoy, entreats us all to be as positive and committed to this process as possible. He has a part to play by opening his eyes and thinking about the consequences of this for the rest of the United Kingdom. I very much hope that this clause will not stand part of the Bill.

Clause 43 agreed.