Scotland Bill

Lord Forsyth of Drumlean Excerpts

Wednesday 24th February 2016 Lords Chamber

[Lord McFall of Alcluith (Lab)]

My Lords, I thank the noble Lord, Lord Stephen, for speaking to the amendments. We are generally supportive of a number of them but, as my noble friend Lord McAvoy said earlier, the Labour Party’s aim is to ensure that the Bill gets on the statute book. It is with that realistic element in mind that we debate these issues. The noble Lord, Lord Forsyth, shakes his head, but he has been shaking his head all night—and for years—on this issue. It is important that we are constructive. I am proud that we have been constructive on this side in helping the Bill to become an Act, therefore ensuring that the relationship between the Scottish Parliament and the UK Parliament gets off on the best foot. I am sure that government Ministers will be on the same level as us on that sentiment.

We support Amendment 29, tabled by the noble and learned Lord, Lord Wallace, the noble Lord, Lord Stephen, my noble and learned friend Lord Davidson and my noble friend Lord McAvoy. The amendment would give the Scottish Parliament legislative competence for equality of opportunity relating to the Scottish functions of Scottish and cross-border public authorities, including non-executive appointments to public boards. It also clarifies that the Scottish Parliament’s power to modify the Equality Act 2010 is limited to making provision that enhances the protection and promotion of equal opportunities. Our Amendment 30 would amend Amendment 29 and give the Scottish Parliament the ability to set quotas for candidates at Scottish parliamentary and local elections. I also speak in support of Amendments 31 and 33, which we have co-signed with the noble and learned Lord, Lord Wallace, and the noble Lord, Lord Stephen.

I start by addressing Amendments 29, 31 and 33, which have been drafted by the Equality and Human Rights Commission. First, we place on record our thanks to the EHRC for its work and its continued support throughout the passage of the Bill. Taken together, these amendments have a significant impact on the Scottish Government’s ability to tackle inequality. As the noble Lord, Lord Stephen, has just said, the amendments will give the Scottish Parliament legislative competence in respect of equality of opportunity in Scottish and cross-border public authorities, including non-executive appointments to public boards. They clarify that changes to the Equality Act can only enhance the protection and promotion of equal opportunities, which at present is insufficiently clear.

They also ensure that the Scottish Parliament is not limited in its capacity to act in relation to non-executive appointments to public boards. Finally, they give the Scottish Parliament legislative competence over the public sector equality duty. The Minister stated in Committee that,

“devolving the duty itself is a step too far”. —[Official Report, 19/1/15; col. 674.]

However, he seemed to be arguing that this was more for bureaucratic reasons than anything else. If that is the case, I submit that the Government should look carefully at these amendments to see what can be done.

[Lord Forsyth of Drumlean]

The noble Lord is making a case for these amendments but, as I understand the Labour Party’s position, it is committed to ensuring that no amendments are made to the Bill. So why are we sitting here at 10.06 pm listening to advocacy for amendments which his party is determined should not actually get on to the statute book?

[Lord McFall of Alcluith]

Actually, I remember, at the beginning of the day, the noble Lord being very robust about Clause 1 and threatening to bring the house down; then he did not press his amendment. Why is he so vigorous at one stage and then so weak and wobbly-kneed? He should stay by his conviction and put the vote to the House, so that he can find out what their measure is. What is sauce for the goose— I will let him finish it.

The Minister mentioned in Committee that devolving the competence to the public sector itself would be a step too far. The Government should look at these amendments to see what can be done. We would like to think that the measured reason we have at this Dispatch Box could influence the Minister before the end of the day. That is why we are standing here, doing our public duty after 10 pm, and I am sure that I will get acclamation from all sides of the House for that.

I agree with the Minister that we must be cautious about creating excessive burdens on private and voluntary groups. I urge the Government not to simply dismiss the idea out of hand. There will clearly be challenges—we accept that—but these have to be weighed against the outcome of fundamentally altering our society’s approach to equality. Our Amendment 30, which takes the somewhat unusual step of amending an amendment, increases the scope of Amendment 29. As I have made clear, we support Amendment 29, but we believe it could go further. Indeed, it needs to go further to ensure that the Scottish Parliament reflects the society it represents.

Amendments 31 and 34 would require political parties to publish diversity information in relation to Scottish elections. Of course, transparency is important and we expect the Minister to agree with us in mentioning the initiative when it comes to pay. However, from experience we are aware that, despite this action, the problem remains a negative feature of our culture and society. Indeed, when it comes to pay, at the current rate of progress it will take nearly half a century for women to be paid the same as men. This demonstrates that we need to go further than Her Majesty’s Government are apparently prepared to go. The Scotland Bill provides a vehicle to do just that.

More can be done to promote gender equality in politics. In fact, the intent of Amendment 30 is to give the Scottish Parliament the ability to set quotas for candidates at Scottish parliamentary and local elections. Under the leadership of Kezia Dugdale, Labour has made substantial progress on this issue. Research from Women 50:50, which I thank for its continued support and guidance, revealed that 52% of the constituency Labour candidates and 50% of the Labour list candidates in the upcoming elections are women, compared with just 15% and 14% respectively for the Conservatives. So a determined and committed leadership shows what can be achieved by introducing candidate quotas. I hope that we can make this the norm across Scotland. It is an extension of the principles of the Smith commission since Smith advocated that the Scottish Parliament should have more autonomy over equality provisions in society. If they are good enough for the public bodies in Scotland, it is surely illogical to argue that we would not want the same for the Government who represent Scotland. Indeed, as Women 50:50 says:

“We need a fair number of women in parliament so that women’s lived experiences exist in policy-making. The system and the policies it creates disadvantage women if there are not enough women round the table to actually represent their views. It is crucial to democracy and to women across Scotland to be represented fully”.

This amendment, combined with amendments already referred to, would help to continue to challenge this fundamental disparity which we have in our political structures. With these amendments we invite Scottish society to play its part in bringing about the more equal, fair and inclusive society that everyone wishes for Scotland. We should hold our elected representatives to those same high standards. In accepting these amendments, the Government would bring about such parity. I hope that, even at this late hour, debating these issues can stimulate the Government to think differently and perhaps result in a changed outcome before we next meet next week. With that, I beg to move.

--- Later in debate ---

[Lord McAvoy]

However, let me deal with those who are. Earlier, the noble and learned Lord, Lord Wallace of Tankerness, shared with the House a conversation that he alleges he had with the Labour Whips’ Office. I do not know whether it is true, but in my 23 years in the House of Commons conversations with the usual channels and with Whips were sacrosanct. But seeing as how the noble and learned Lord has seen fit to venture into this territory, I shall share, in further defence of our strategy of trying to influence not only the UK Government but the Scottish Government, a statement from the noble and learned Lord to myself at the Bar, which I would not normally share, in which he indicated that the Liberals were going to use the vote on the Crown Estate for election leaflets in the islands. So here we are—the Scotland Bill is reduced to a political gambit for cheap political point-scoring. [Laughter.] The noble Lords may laugh and scoff, but they are the only ones who are doing so. Therefore we are taking the honourable position of trying to influence, not just engaging in gesture politics and staging votes for cheap political points, and we hope that we have influenced the Government—we will see what their response is—and the Scottish Government as well.

[Lord Forsyth of Drumlean]

My Lords, I will briefly speak to Amendments 41 and 42. I thank the noble Lord, Lord Faulkner of Worcester, for having tabled these amendments and for putting the case so eloquently. We had quite a wide-ranging discussion in Committee and I am very disappointed indeed that the Government have not come forward with proposals—a number of constructive options were suggested.

I have been trying to think of two words to explain the conduct of the Official Opposition over the Bill, and “kowtow” would sum it up. They are utterly terrified to say anything that could be interpreted in any way as not being in line with the Smith proposals or as doing anything that might upset the Scottish Government, which is very disappointing, particularly in the context of this issue.

As the noble Lord, Lord Faulkner, pointed out, the British Transport Police has for nearly two centuries served our country extremely well. It is a while since I was Secretary of State but I remember the important role it had in ensuring that we were able to cope not just with terrorism but with drug traffickers and other criminals who use the transport network. It is a highly specialised area and it is an act of utter vandalism to break up the British Transport Police in the way that is being proposed.

It is a particularly stupid of the Government to go along with the idea that the British Transport Police should be fragmented and the Scottish element of it included in Police Scotland which, I am sad to say, is in Scotland regarded as something of a joke and a disaster. Prior to the Scottish Government making the changes we had independent police forces operating extremely effectively throughout Scotland. The advocates of devolution decided to take power away from those police forces and centralise them into Police Scotland, and the results have been disastrous as regards communications and operational failures. I place responsibility for this not on the individual members of the police force but on the Scottish Government, who have created this chaos. Both the notion that we should break up the British Transport Police and hand it over to an organisation which has just sacked its chief constable and appointed a new one to sort out its problems, and the amendments which have been put forward by the Labour Party tonight which suggest that we set up a quango to help deal with the problems of implementation and administration, are just breathtaking in the scale of their irresponsibility.

We have no reason to interfere with the operations of the British Transport Police, so what offends the Scottish Government about it? The noble Lord, Lord Faulkner, put his finger on it: it could be the B word —the fact that it is called “British”—which offends. However, this is not a Scottish issue but a United Kingdom issue. It is about the security of the United Kingdom as a whole. I very much hope that the Minister will think again about the options which have been put forward in the amendments tabled by the noble Lord, Lord Faulkner, about how we can maintain a British force.

[The Earl of Kinnoull (CB)]

My Lords, the noble Lord is developing a very interesting point. I wonder whether, in doing so, he would like to refer to the no-detriment principle—principle number 5, of which I can hand him a copy now—and whether or not this offends that principle of the white sacred document, the Smith commission report.

[Lord Forsyth of Drumlean]

Indeed, I am familiar with the no-detriment principle, which is that policy changes on either side of the border should not have a negative impact on either country, and this is a classic example. So it is actually against the Smith commission proposals and, as the noble Lord, Lord Faulkner, pointed out, it is perfectly possible to maintain the integrity of the British Transport Police and meet the requirements of the Smith commission.

Can this be the same Government who are busy arguing that it is necessary for us to maintain our relationship with the European Union in order to maintain our security because of the importance of being able to share cross-border information et cetera? That same Government are now arguing and supporting a proposal that we should break up within our country a police force that operates cross-border. What is going to happen when the train gets to the border? Do the British Transport Police get off the train and somebody from Police Scotland gets on the train? How are they going to share information? What will the cost of all this be?

We have already had a glimpse of what might be in the fiscal framework: £200 million will be given to the Scottish Government to administer the welfare proposals that are being administered in large part in Scotland at present. That is money that would have been far better spent on welfare and not on bureaucracy. And here we are again. I always use the old cliche, “If it’s not broken, don’t fix it”. This is an organisation that has, as far as I am aware, served the public on the Glasgow Subway and throughout the rail network system. It is a specialist area, with the force operating on trains in dangerous circumstances using an experienced cohort with an esprit de corps. No one I have seen in the British Transport Police or among anyone with experience in this area supports what is being put forward. It is being put forward in order to kowtow to this obsession with trying to put a kilt on everything. It seems to me that the Government would do well to consider the amendments that have been put forward by the noble Lord, Lord Faulkner, think again and come back at Third Reading with something that looks to protect the interests and security of the people on both sides of the border.

I listened to the noble Lord, Lord McAvoy. He said that, basically, this is all very difficult and, although we would like to do something, we cannot offend against the principles of the Scottish Government being able to decide these matters. I say to my noble friend the Minister in all seriousness: if there is an incident as a result of this change which would not have occurred otherwise, Ministers will find themselves suffering extreme criticism, and deservedly so. I hope that my noble friend will think again on this and come back with an amendment at a later stage that preserves the integrity of this important force.

[Lord Empey (UUP)]

My Lords, I would like to speak to Amendments 41 and 42, and then move to Amendment 44 standing in my name. First, I thank the Minister and his staff for facilitating meetings and discussions, and, indeed, the representatives from the Department for Transport for making themselves available. I would also like to commend the contribution from the noble Lord, Lord Faulkner, which was a tour de force of the situation that is in front of us.

When I tabled an amendment in Committee I never thought for one moment that the ripples would go out as they have—it seemed to strike a chord with people. We are fixing a problem that does not exist. The force’s figures and its success rate are all moving in the right direction. I have heard no criticism of the service delivery and am completely unaware of any proposal that would enhance the service. I have no doubt that officials, working with the Scottish Government, could come up with mechanisms to make the situation work. That is what civil servants do. My experience is that if Ministers ask them to do something, they do their best to deliver it, so something could be put together.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, 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 simple and straightforward sentence, but what lies behind it is actually very profound. My concern is that what is being proposed by the Government does not safeguard the functions of the British Transport Police if they are devolved. I respect and generally support the way it is being done in terms of exceptions to the general reservation under Part 2 of Schedule 5 to the Scotland Act 1998, but what we have heard is that the Scottish Government intend to put the British Transport Police under the ambit of Police Scotland.

I will not go into the woes of Police Scotland with the noble Lord, Lord Forsyth, and the noble Earl, Lord Kinnoull, who have both mentioned them, but even at its best one can readily imagine that once the BTP comes under the auspices of Police Scotland, if you are the chief constable and you have problems and challenges with regard to resources, you might well think, “Well, why do we have a specific police presence in Waverley station? Surely it can be covered by the police we have got who would otherwise be monitoring Princes Street?”. It would not be proper for politicians to interfere in the operational decisions of the chief constable. For operational reasons the functions of the British Transport Police under a different guise could be whittled away bit by bit.

[Lord Forsyth of Drumlean]

Of course there is also the complicating factor that part of the budget of the British Transport Police is actually paid for by the transport operators.

[Lord Wallace of Tankerness]

The noble Lord is absolutely right, and we aired these concerns when this was debated in Committee.

It is interesting to note in the submission made by the British Transport Police Federation to the Scottish Parliament Devolution (Further Powers) Committee that:

“In 2001, the government response to the DfT consultation which led to the BTPA’s creation … stated that: ‘The Government therefore considers that the national railway network is best protected by a unified police force providing a dedicated, specialist service and able to give proper priority to the policing of the railways’”.

The memorandum to the committee of the Scottish Parliament goes on to quote the Transport Select Committee of the other place in 2004, which,

“looked at the reforms to the BTP’s governance arrangements … It concluded that: ‘The British Transport Police is not a Home Office Force, and nothing we have heard suggests that it should become one. The railways are a specialised environment, with specialised needs, and need a specialised Force’. They continued: ‘The steady reduction of resources allocated to traffic policing leads us to agree with Her Majesty’s Inspectorate of Constabulary that unless there is a national force dedicated to policing the rail network, the task will not be given the priority it needs’”.

Our concern is that if, having devolved and lost control of this area and the Scottish Government exercise the devolved powers that they have to bring it under the direction of Police Scotland, the very concerns that were expressed by the BTPF and others will be borne out. The specialist services which the British Transport Police currently deliver could be lost over time, and therefore what the Smith commission argues is that the functions possibly could no longer be exercised.

Noble Lords have referred to a number of those functions, in particular tackling terrorism on our transport network. One I particularly note is that:

“The British Transport Police has created specialist teams with responsibility for the management of multi-agency support for local and national suicide prevention, mental health interventions and vulnerable persons encounters. An ongoing force-wide operation (Operation Avert) has so far achieved a 30% reduction in suicide attempts compared to the same period the year before”.

These are very profound specialist functions that the British Transport Police provide.

--- Later in debate ---

[Lord Berkeley (Lab)]

My Lords, I support my noble friend Lord Faulkner’s Amendments 41 and 42. I certainly will not repeat the excellent speeches made in support of these and the other amendments this evening. I will emphasise one or two things: first, how different policing the railways is nowadays. The noble and learned Lord, Lord Wallace, mentioned Waverley station, which brings me to crowd control of, for example, football crowds. The British Transport Police has an enormous and excellent reputation in ensuring safety of passengers on the Underground and ways into the Underground, and has ways of keeping them safe on the platforms themselves so that the train does not run into them and they do not get pushed on to the track. There is, sadly, the ongoing issue of terrorism and people trying to do nasty things to the trains, which can be very dangerous. There was an incident last Friday in Belgium where somebody put some concrete blocks on the track of a high-speed line. Luckily, the train did not derail, but that can happen anywhere. Again, having the local police going along and dealing with that might be all right, but there is a good chance that it would not be all right. We have to ensure that this specialism is retained and preserved in whatever happens.

My noble friend Lord McAvoy seemed to be saying that we should give the Scots everything they want in this legislation. That is an argument I do not have particular views on, except on the railways. If we want to give them British Transport Police separated from the rest of the UK, why not give them the railway completely? Why not give them Network Rail? There is nothing in the Bill that says Network Rail is going to be owned in Scotland, or separated from the UK. It probably does not particularly matter who owns the railway, but there is the matter of timetabling.

I spent many years in various discussions across Europe trying to encourage passenger and freight trains to move across frontiers without stopping for hours, minutes or sometimes days because the timetable is not co-ordinated. Of course, that could happen here if the Government give the responsibility to Scotland for having a separate timetable. I am sure it would not happen, because we are not that stupid, but it seems to me that if we are going to keep the railways as an integrated whole, and not make all the Virgin trains stop at Carlisle for everybody to get out and get on to a different train, why separate the police?

The other issue of which we ought perhaps to remind ourselves, also mentioned by the noble Lord, Lord Forsyth, and the noble and learned Lord, Lord Wallace, is the question of who pays. We all know that Network Rail at the moment pays 50% of the cost of the British Transport Police and the train operators, passenger and freight, pay the other 50%—I declare an interest as chairman of the Rail Freight Group. If I were a train operator in Scotland and I found that the BTP did not exist there and any policing on the railways was being done by the local bobby, I would say to myself, and to the politicians, “Why do I, operating a train in Scotland, have to pay for policing the railway, such as it is, but if I operate a bus, a car or a lorry in Scotland, I do not have to pay?”. And I would not pay, because it is very out of balance between road and rail—I would probably get nothing for it either.

At some stage, someone is going to have to work out who is going to pay for the policing in Scotland that will no longer be done by the BTP. There is absolutely no reason why the rail passenger or freight customer should have to pay for whatever policing they get and the main competitor, which is road, should not have to pay. Maybe the Minister already has an answer to that.

[Lord Forsyth of Drumlean]

Surely, under the no-detriment principle, what was previously being paid by the transport operators to cover Scotland would need to be provided by the Scottish Government in a cheque to the British Transport Police south of the border.

[Lord Berkeley]

I entirely agree with the noble Lord: that is the way it should be done. The operators in England do complain, occasionally, about what they get for their money—the British Transport Police probably spends half its budget in London, because London is very important, with the Underground. The fact remains that they all accept this, but they do expect to get the specialist knowledge, albeit sometimes in support of the local police, who may get there first. They know that the BTP is there to provide the specialist knowledge and make sure that everything they do is done safely. I feel very strongly about this and I hope that the Minister will give us some comfort. If not, we will have to see what happens.

[Lord Dunlop]

I particularly thank the noble Lord, Lord Faulkner. He always speaks on railway matters with such authority. I thank noble Lords for the other informed and authoritative contributions we have heard during this debate.

I think one thing is clear: all sides of the House are agreed that the British Transport Police does an excellent job of policing our railways. That is not in doubt. However, the issue this evening is whether this House will agree to devolve to the Scottish Parliament the functions of the British Transport Police in Scotland. As has already been said, the Smith agreement says:

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

The functions of the British Transport Police in Scotland are the policing of the railways in Scotland. The Smith Commission also stated in paragraph 19:

“Where the agreement provides that powers or competence in relation to a matter will be devolved, this is intended to mean a transfer of full legislative competence to the Scottish Parliament along with that of the associated executive competence to the Scottish Government”.

Clauses 42 and 43 devolve legislative competence in relation to railway policing in Scotland and designate the British Transport Police bodies as cross-border public authorities. This is devolution. It has been argued tonight that this aspect of the Smith agreement could be implemented in a different way by retaining the BTP as a single body but making it jointly accountable to Scottish Ministers and the Scottish Parliament. There is nothing in this Bill to prevent that outcome being achieved. The Bill does not dissolve the BTP. It does not mandate that the BTP should no longer operate in Scotland. It does not prescribe a model by which policing of the railways in Scotland should be carried out in future.

What the Bill does do is ensure that the BTP continues to operate in Scotland as now, unless and until the Scottish Parliament decides to pursue an alternative approach, and it ensures that Scottish Ministers are consulted on appointments to the BTP bodies. It will be for the Holyrood parties to set out in advance of the elections what their approach to the BTP in Scotland will be. The Scottish Conservative manifesto for the Holyrood elections will contain a clear commitment to retain a single nationwide British Transport Police—not absorbed into Police Scotland—but a BTP made more accountable to Scottish Ministers and the Scottish Parliament.

[Lord Forsyth of Drumlean]

I very much hope that the Scottish Conservatives will win more seats at the election but I am not anticipating them becoming the Government of Scotland. My noble friend must know that Scottish Ministers have made it clear that they intend to break up British Transport Police if they have the power to do so, and to amalgamate it into Police Scotland. Therefore, is it not a little disingenuous to imply that what the Bill provides will not threaten the integrity of the British Transport Police? It will indeed.

[Lord Dunlop]

I can assure my noble friend that I will not turn myself into Mystic Meg tonight and make a prediction about the Scottish elections. I am making a broader point because I think the real point is that embracing devolution means trusting the Scottish Parliament to act responsibly with the powers it is given, and respecting the ability of people in Scotland to hold its representatives to account. I fear that for this House to decline to support this provision would send out a clear message to Scotland that we do not trust its Parliament and the ability of people in Scotland to hold it to account. Should the Scottish Government and Scottish Parliament press ahead to legislate for, and implement, a different model for policing the railways in Scotland, and to integrate the functions of the BTP with Police Scotland, I believe it is reasonable to expect the two Governments, working together, to be able to put in place the necessary arrangements to ensure that the service remains as effective as it is today, that the transition is seamless and protects the interests of people on both sides of the border, and that there is no detriment.

Counterterrorism has been specifically referred to. I want to address that directly. The BTP currently undertakes counterterrorism policing of the railway. This includes a range of operational measures and deployments designed to mitigate and manage the terrorist threat. General policing is already devolved and arrangements already exist between Police Scotland, the BTP and Home Office police forces to ensure the effective delivery and co-ordination of policing, and we would clearly expect these to continue under any new model. The Scottish Government already work with a range of partners, including the United Kingdom Government, Police Scotland and the British Transport Police, to ensure that Scotland is protected from a range of threats, including terrorism. There are well-established national procedures in place for policing across regional and functional boundaries, and these will certainly continue to apply.

Going back to what I was saying about ensuring that the service remains as effective as it is today, that is what has happened with every act of devolution since the Scottish Parliament was set up in 1998. Officials are meeting regularly and both Governments are committed to working constructively and effectively on the detailed arrangements needed to enable the transfer of functions to take place. A senior-level joint programme board to lead and oversee the work to integrate the BTP in Scotland into Police Scotland, should the Scottish Government decide to press forward after the election in May, has been established by the two Governments and includes representatives of the two police authorities. The terms of reference for the joint programme board will be formalised following the Scotland Bill receiving Royal Assent, and I will be happy to share these with noble Lords. Once the Scottish Government have finalised their plans for the future model of railway policing, I will be happy to update the House on implementation plans. Before this, the Scottish Government have made clear their intention to engage with key partners and staff representatives to ensure that the specialist railway policing skills and expertise of British Transport Police officers and staff in Scotland are maintained.

I hope noble Lords will not press their amendments and will allow this provision to proceed. Of course, I will reflect on the discussions that have taken place but I cannot undertake to commit to any amendments.