Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2017

Lord Duncan of Springbank Excerpts

Wednesday 10th January 2018 Lords Chamber

Moved by

[Lord Duncan of Springbank]

That the draft Order laid before the House on 13 September 2017 be approved.

Considered in Grand Committee on 29 November 2017.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, the order before the House has been made to ensure that the policy set out in the Criminal Justice (Scotland) Act 2016 can be fully implemented.

That Act contains a number of provisions which arise from Lord Carloway’s review of Scottish criminal law and practice. These include reforms of arrest and custody laws designed to provide flexibility for police in conducting investigations while ensuring fairness for suspects. It will also allow suspects access to a lawyer whether or not they are to be interviewed by the police. In addition, the Act specifically states that the police have a duty not to deprive people of their liberty unnecessarily.

As a consequence of some of these measures it is necessary either to amend the law elsewhere in the United Kingdom or to make provision in relation to Scotland, where the reforms apply to reserved matters. Making such amendments is not within the competence of the Scottish Parliament, so it is necessary for this order to be laid before the United Kingdom Parliament. It is made under Section 104 of the Scotland Act 1998, which allows the UK Government to make legislative changes which are necessary or expedient in consequence of an Act of the Scottish Parliament.

The order makes provisions about arrests effected both in Scotland, and outside Scotland, in connection with crimes committed in Scotland and the investigation of Scots law crimes and extradition matters in Scotland. The draft order was previously considered in Grand Committee on 29 November. At that time, the noble Lord, Lord Foulkes of Cumnock, raised some concerns. Specifically, he was troubled by the impending merger of the British Transport Police with Police Scotland—a position I might add that was shared by many in this House. The noble Lord declared the move to be,

“dangerous, reckless and ought to be stopped”.—[Official Report, 29/11/17; col. GC 9.]

That brings us to the amendment this evening. There is always a danger in seeking to anticipate the remarks of the noble Lord, Lord Foulkes, before he has made them, but it is important to recognise that while this order touches on the British Transport Police tangentially, it is not its principal focus. In so far as the British Transport Police operates across the United Kingdom, the order will have no impact whatever on the ongoing merger of the policing of Scottish railways. It is for that reason I beg to move.

Amendment to the Motion

Moved by

--- Later in debate ---

[Lord McAvoy (Lab)]

My Lords, if I say anything, I will only be repeating some of the things that have already been said a lot more eloquently. It only remains for me to say that we fully support and congratulate my noble friend Lord Foulkes of Cumnock on his determination and persistence in this matter. He has made a reasonable request. I know from previous experience that the Minister is a serious and flexible man, and I am quite sure that he will respond in a positive manner.

[Lord Duncan of Springbank]

My Lords, I congratulate the noble Lord, Lord McAvoy, on his brevity. I was hoping for a longer intervention so that I could just gather together some more of my papers before I began—they are piling up around me.

I begin by thanking the noble Lord, Lord Foulkes of Cumnock, for initiating this debate. The sheer number of contributions, and their quality and breadth, is testament to the need for this discussion. It is important for me to stress, however, that this debate was born of a particular order but, having heard several noble Lords, much of the discussion has not focused on the order itself. If your Lordships will forgive me, I will touch on the order at the outset because it is important to stress why it is before us tonight. I will then spend most of my time talking about the issues that have been raised.

I turn, first, to the purpose of the order. It has been laid simply to ensure that the measures contained in the 2016 Act that affect the law elsewhere in the UK, which apply to reserved matters in Scotland, can be amended as required. The Scottish Parliament cannot do that and we have to do it. That is the purpose of the order. It makes provisions about arrests effected both in Scotland and outside Scotland in connection with crimes committed in Scotland that are being investigated under Scots law or where extradition to Scotland has been necessary. In response to the noble and learned Lord, Lord Hope, this is the aspect that allows the British Transport Police to reach beyond and equalises the ability of the police to act in each other’s jurisdictions. That is already contained in the order.

These provisions are important because they are part of the ongoing devolution settlement. The process for developing such an order is in itself important, both by the manner in which the two Governments co-operate and collaborate and by the means by which they are adopted and introduced in your Lordships’ House and the other place. It is simply a way of ensuring that devolution works effectively.

In response to the noble and learned Lord, Lord Wallace of Tankerness, I should also stress that further orders affecting the British Transport Police will be coming. He will be aware of Sections 90 and 104 of the Scotland Act 1998, which touch on the transfer of people, assets and liabilities from the British Transport Police and the ability to make any consequential provision. Further orders will be made specific to this—

[Lord Maxton]

Will there also be orders relating to the different legal systems in Scotland and England? That is relevant to any discussion on British Transport Police.

[Lord Duncan of Springbank]

I thank the noble Lord for his intervention. The orders, when they arrive, will be constructed through the collaborative process between the two Governments, which I touched on a moment ago. In any order, they will bring forward proposals that comply with both Scots law and the broader law of England and Wales. We should be able to have that before us.

It is important to stress, as several noble Lords have, that the Smith commission and the legislation by which its conclusions were enacted are important elements of the continuing Scottish devolution process.

[Lord Forsyth of Drumlean]

I apologise to my noble friend but am I being stupid? When he said that there will be further orders in connection with the British Transport Police, is he saying that the Government intend to support the break-up of the British Transport Police?

[Lord Duncan of Springbank]

To be clear, in this instance, the Smith commission and the rules that it contained devolved to the Scottish Parliament the right to take this matter forward. The Scottish Parliament has determined how it shall do so. Today’s discussion is about how it has interpreted the clauses. At present, it is anticipated that we must make sure that the ongoing British Transport Police continues to function. I will come to the points raised in a manner that will, I hope, satisfy noble Lords—

[Lord Foulkes of Cumnock]

I want to pick up on what the noble Lord, Lord Forsyth, said, because he has cottoned on to something important. The Minister said, I think, that one of the orders would relate to the transfer of property, which I mentioned. I hope that order will not be laid until such time as any action that he proposes to take as a result of this debate is concluded.

[Lord Duncan of Springbank]

Again, the noble Lord, Lord Foulkes, has anticipated what I will say shortly. Perhaps noble Lords will allow me to make some progress on the broader position.

I emphasise again that whatever reservations noble Lords may have about this approach, we must recognise and respect the agenda of the Scottish Parliament. That is part of the ongoing Smith agreement. However, let me turn to the matter that has most exercised the noble Lords here today—

[Lord Berkeley]

My Lords—

[Lord Duncan of Springbank]

Perhaps the noble Lord will allow me to make some progress. I may have time to give way to him later.

[Lord Berkeley]

I want to ask the Minister about what he has just said before he moves on to the next point. He mentioned that under Article 6(b) the British Transport Police will be able to go north of the border. But will he respond to my question? Will Scottish police be allowed to go south of the border or will they be seen as foreigners and so not allowed in?

[Lord Duncan of Springbank]

The noble Lord has again pre-empted what I am about to say. To be very clear, the purpose of the order is to ensure that criminals can be pursued in either direction. It seeks to equalise the ability of the transport police to function in both jurisdictions, and it delivers that.

I come back to the remarks made by the noble and learned Lord, Lord Wallace of Tankerness. The functions of the British Transport Police in Scotland will be a devolved matter. However, in the previous debate, the noble and learned Lord went on to say that that is slightly different from saying that British Transport Police itself will be devolved. It is, therefore, a matter of some interpretation. We have heard a number of points thus far from noble Lords on why that interpretation does not meet the test of good policing within the wider infrastructure of the United Kingdom.

Recent press reports of morale in the Scottish division of the British Transport Police show that up to two-thirds of officers are unsure whether they will transfer to Police Scotland following the merger, and only one-third of officers have declared that they definitely intend to do so. That should give pause for thought and concern. It is also worth stressing that, importantly, British Transport Police has, throughout its history, been a success. Since 2005, it has reduced crime on Scotland’s rail network by 56%, an achievement that compares favourably with an overall reduction of crime in Scotland of 38%. That is no mean feat and certainly worthy of praise. We should recognise that here.

The ultimate test of the merger under discussion is whether it makes the policing of Scotland’s railways better. As a former Member of the European Parliament, I recall how important it was that, before substantive changes were made to legislation, serious impact assessments were undertaken to ensure that the outcome would be delivered by the means chosen. That important element is missing from some of the discussions being put forward. I say that as a member of the travelling public and in recognition of the concerns that have been expressed by a number of the agencies and bodies cited this evening.

Before I conclude, I will touch on some of the substantive points made. I begin with the confusion that may have arisen around what will happen next. We need to put at the fore of our minds that this involves police officers who have delivered for the betterment of our country. The merger is not due to any failing of theirs and at no point should it be recognised as such. Nor is it a failing of British Transport Police in any element of its operation.

Some of the issues raised tonight need to be dealt with in great detail, but I will touch on what the noble Lord, Lord Clark of Windermere, said. He talked about the inclusion of the Civil Nuclear Constabulary and the Ministry of Defence Police. It is important to stress that the Smith commission did not at any point intend to devolve these aspects. Therefore, although they are touched on in the order, at no point will these functions be onward devolved to the Police Scotland operation. That is particularly important.

To make this move work, a joint programme board has been created. That board is particularly focused upon where the points of friction rest and how they can be addressed going forward. I will come back to its role in delivering the outcomes that noble Lords here today would like to see.

The noble Baroness, Lady Liddell, touched upon one of the most fundamental questions—terrorism—and how we can assure there is no diminution in our preparedness, our scope, our ability to operate and our attention to the issues before us. There are pre-existing protocols between Police Scotland and the various agencies and constabularies south of the border. These will continue to deliver against that outcome. It is important, however, that they are tested to make sure that they are fit for purpose in that regard.

This is not only about Scotland—it is important to stress that. The British Transport Police covers the whole of our country, not only one part of it. Further, we have to recognise that the threats to our country are not specific to one nation or region but, rather, in many instances are a threat to us all. We must recognise, therefore, that there will be responsible agencies which will take these matters forward.

Let me touch on where we can make serious progress. To address the challenges of the onward devolution of the policing of the railways in Scotland, the two Governments have established a joint programme board. The board is currently working to achieve an orderly transfer and to provide affected officers and staff with clarity at the earliest opportunity. The board has sought to address the findings of the recent report on devolution conducted by Her Majesty’s Inspectorate of Constabulary in Scotland, which has been cited by a number of noble Lords today. Its principal purpose is to ensure that each of those issues is addressed head on.

Therefore, minded as I am of the remarks of the noble Lord, Lord Foulkes, and other noble Lords, following this debate I will secure a meeting with the UK Government co-chair of the joint programme board. At that meeting I will take the salient points from this debate and put them before it. I will ask the board to produce a report, which I anticipate will form the basis of a formal discussion between the Government of the United Kingdom and the Government of Scotland. Thereafter I will write to the noble Lord with the result of that discussion and place a copy of that in the House. The next meeting takes place on 30 January 2018.

I stress again that there are two further Scotland Act orders pertaining to the British Transport Police. I will report back before these orders are laid.

[Lord Forsyth of Drumlean]

When the British Government’s representative—the Minister responsible for this—attends that board, what will his policy be? Will it be to maintain the British Transport Police or to allow it to be broken up?

[Lord Duncan of Springbank]

The noble Lord, once again, puts his finger on the issue. Our purpose will be to ensure that the answers which come from the board are satisfactory. If they are not satisfactory, then opportunities will be provided for this House and others to move forward in a different way. Oh, I heard someone say, “What does that mean?”, which is a helpful remark. I was trying to be cryptic in one sense. I am basically saying that this is not the end of the story. I hope that we will receive satisfactory answers at the programme board which will allow us the clarity to establish that we are satisfied that policing on our railways is not affected to the point of detriment.

[Lord Foulkes of Cumnock]

I think I understand what the Minister is saying and I agree with him. The Minister or the representative to the programme board is going to go to the board, express the points of view that have been made here—which have come from the unionists, the Conservatives, the Cross Benches, the Liberal Democrats and Labour—and report back to us. If we are not happy about the outcome, then there are two more orders which may or may not be laid and which we may or may not pray or move against. That will give us the opportunity after the programme board to know whether we are happy and whether or not the House and the Minister want to go ahead with those two further orders.

[Lord Duncan of Springbank]

The noble Lord may well say that but I stress again that the important thing is that the salient points raised by noble Lords today are considered in all seriousness by the programme board. I hope there will be an opportunity for that board to respond and to satisfy all the questions raised today. I have noted them down. To put them in context, we need to know that terrorism and security issues are addressed head on—there can be no diminution in these. We must recognise that this involves real police officers and that there can be no impact upon their well-being, their morale or their situation, and that they must be treated with respect throughout this process. We must be cognisant of the no-detriment principle. Where there are costs, we must understand how those costs will be allocated fairly and appropriately. We must also recognise that they should not be unfairly or inappropriately placed elsewhere.

[Lord Wallace of Tankerness]

On the question of costs and the no-detriment principle, is this a matter for the joint programme board to sort out or do the United Kingdom Government have a view as to how any detriment to the British Transport Police in England and Wales should be addressed?

[Lord Duncan of Springbank]

We want to make sure that a no-detriment principle is adopted throughout, so there should be no impact on parts of the United Kingdom as a consequence of this which would have to be met by those who are affected by it.

It is important to note the other issues that we need to be very clear about. The British Transport Police is a specialist constabulary, not a traditional one. It focuses on particular aspects of enforcement which are important and cannot simply be substituted by officers from other traditional constabularies. We must not lose sight of that. Any risk that there may be flight from the particular integrated elements would in itself be a problem for the overall functioning of transport policing in Scotland. There can be no diminution in the quality of the service. We also have to recognise that throughout this area there is an issue of being respectful to the Scottish Parliament. The Scottish Parliament itself, through the Smith commission and onwards, is the principal interlocutor in addressing this matter. We cannot lose sight of that fact because it is also important.

Perhaps I may be a little more bold and say that in some respects this is one of those issues where one can see the difference between a unicameral and a bicameral Parliament. Perhaps if the Scottish Parliament had a second Chamber, some of these matters might have been addressed in a slightly different way. However, that might be a little bit provocative.

Let me conclude with a quotation which I am sure will be familiar to noble Lords, but perhaps they do not necessarily know its source. When I say the name Thomas Bertram Lance, I suspect that there will be blank stares. He was the director of the Office of Management and Budget in Jimmy Carter’s presidential Administration. In 1977 he coined the maxim,

“If it ain’t broke, don’t fix it”.


In some respects, we should always recognise the importance of that particular dictum. However, I should stress that that conclusion must be determined by the Scottish Parliament as a matter of course. It is that Parliament’s responsibility to hold to account the Scottish Government, who have moved this matter forward.

I appreciate that I have not had time to touch on all the issues raised in the debate but I hope that I have been able to give the noble Lord, Lord Foulkes, some comfort in my remarks so that he will not be regretful and therefore not press his amendment to the Motion. I hope that this has been a satisfactory response to our debate.

[Lord Empey]

Perhaps I may raise one point with the noble Lord. Where is the national interest in all of this? The Scottish Parliament cannot reflect it. A programme board is made up of two halves, one half of which is the Scottish Parliament and the other the UK Government. That board cannot have a national responsibility because it is made up of one part which does not have such a responsibility. My concern in all this is that the national security interest is going to fall between two stools. I would like an assurance from the Minister that that is not the case.

[Lord Duncan of Springbank]

I believe that I can give that assurance. The very fact that the comments made in this debate shall be summarised and transmitted very clearly to the programme board means that the views of noble Lords will not be lost. I also believe that those views represent the entire breadth of concern expressed, certainly in this instance throughout Scotland but also beyond. That must be reflected on by all those who take as their responsibility the forward movement of the British Transport Police and its future policing policy.

[Lord McAvoy]

Could I ask the Minister to convey the answers that he has not been able to give in this debate to the various noble Lords who asked those questions, and to distribute those responses?

[Lord Duncan of Springbank]

Yes, I am very happy to do that. We have a note of the questions and I have several responses in handwriting that I cannot quite read. That is one of the reasons I have not been as fluent as I might have been on some of the points. Where noble Lords have not received an adequate response, I will do my utmost to ensure that the answers are conveyed to them.

[Lord Foulkes of Cumnock]

My Lords, first I thank the Minister for his courtesy and sympathy in the run-up to this debate. He has been really helpful. I should also thank my noble friend Lord McAvoy for turning the screw on him on our behalf. My understanding is that he is mindful of the very great strength of feeling on all sides of the House and in every party and that that will be conveyed to the programme board. He is going to report back to us and that report will come before any further orders might be put forward in relation to the British Transport Police. I can assure him that we will remain vigilant and look carefully at what progress, if any, is made by the programme board, although we hope that it will be. We will keep an eye on it and we may return to these issues at a later stage. Meanwhile, in the light of what he has said in his response, I do not wish to press my amendment to the Motion to a vote.