Infrastructure Bill [HL]

Lord Faulkner of Worcester Excerpts

Tuesday 8th July 2014 Grand Committee

Moved by

[Lord Faulkner of Worcester]

63: After Clause 15, insert the following new Clause—
“Powers of the British Transport Police to protect transport infrastructure
(1) In section 100 of the Anti-terrorism, Crime and Security Act 2001 (jurisdiction of transport police)—
(a) at the end of subsection (2)(b) insert “or to prevent damage to property”; and(b) omit subsection (3).(2) In section 172(2) of the Road Traffic Act 1988 (duty to give information as to the identity of driver etc in certain circumstances), in relation to an offence involving a railway crossing, “chief officer of police” includes the Chief Officer of the British Transport Police.”

[Lord Faulkner of Worcester (Lab)]

My Lords, in moving Amendment 63, I remind the Committee that we in this House have debated the role, jurisdiction and effectiveness of the British Transport Police on a number of occasions over the past decade, and on each occasion the unanimous view has been that it does a remarkably effective job, not just in helping to keep the railways of England, Wales and Scotland safe and free from crime but also in contributing to the policing of our society as a whole. It has been around since the earliest days of the railway. Indeed, the officers employed on the Stockton and Darlington railway in 1826 predate the passing of the Metropolitan Police Act by three years.

The force deploys capabilities similar to Home Office forces in undertaking counterterrorism, firearms, public order, response policing and criminal investigations. It participates in joint operations such as the G8 and the Olympics and in cable theft operations. The force has ACPO officers in command, trains its officers to national standards and has a high degree of interoperability with partner forces.

The situation relating to its jurisdiction is, however, neither straightforward nor satisfactory, and the purpose of my amendment is to put right one or two of those anomalies. I believe that it has the support of the Home Office and a section of the Department for Transport. It certainly has the support of the British Transport Police itself, and I hope that it will have the support of the Minister.

I start with Section 100 of the Anti-terrorism, Crime and Security Act 2001. Subsection (2) states:

“Members of the British Transport Police Force have in any police area the same powers and privileges as constables of the police force for that police area—

(a) in relation to persons whom they suspect on reasonable grounds of having committed, being in the course of committing or being about to commit an offence, or

(b) if they believe on reasonable grounds that they need those powers and privileges in order to save life or to prevent or minimise personal injury”.

That is fine until you read subsection (3), which states that members of the British Transport Police force,

“have powers and privileges by virtue of subsection (2) only if”

—I repeat: only if—

“(a) they are in uniform or have with them documentary evidence that they are members of that Force, and

(b) they believe on reasonable grounds that a power of a constable which they would not have apart from that subsection ought to be exercised and that, if it cannot be exercised until they secure the attendance of or a request under subsection (1) by a constable who has it, the purpose for which they believe it ought to be exercised will be frustrated or seriously prejudiced”.

I shall describe to the Committee what that means. Let us imagine that a BTP officer is off railway jurisdiction—perhaps walking between one railway station and another close by—and the officer comes across an incident where a member of the public requests his or her help and there may be a need to arrest someone. First, the officer has to check whether the local force will make a request for the BTP officer to deal with it. If it does, the BTP officer has the power to arrest. That could result, however, in considerable delay and lead to the loss of evidence and, worse, loss of the offender. It also damages public confidence in the police service, bearing in mind that the public do not distinguish between police officers from BTP and other forces. They see a police officer in uniform and expect a responsive and effective service.

There is an exception where making those inquires or requests could frustrate or seriously prejudice the exercise of the arrest function. The crucial point is: how are the circumstances that will amount to a frustration or serious prejudice defined? Different officers and different bystanders will have different interpretations, and that can lead to uncertainty, confusion and delay.

There is also a requirement for the BTP officer either to be in uniform or to be in possession of documentary evidence that they are a member of the force, such as a warrant card. For Home Office forces there is no such legislative requirement in general for making an arrest. Although it may be good practice to carry a warrant card, there seems to be no justification for making this rule apply solely to the BTP. That could compromise criminal cases where an off-duty BTP officer who was acting in the public good made an arrest but did not have the warrant card on them. I am, therefore, proposing the complete removal of subsection (3) from the Act.

My amendment also suggests the insertion of the words,

“or to prevent damage to property”,

at the end of subsection (2)(b). This is important and necessary because it will authorise the BTP to take action to prevent or detect incidents in a suddenly escalating public disorder situation. Imagine that BTP officers come across incidents of disorder in a high street when they are passing by. The public and owners of businesses expect the police to protect their property when necessary, and they are not going to be interested in whether they are from a Home Office force or from the British Transport Police.

--- Later in debate ---

[Baroness Kramer]

I say to the noble Lord, Lord Faulkner, that we have a great deal of sympathy with the issues that he has brought forward. The question is whether, from an entirely practical perspective, we are able to resolve all the various policy implications and clearances in time for inclusion in the Bill—not least by working out whether we need legislative consent from the Scottish Government; obviously, there is that additional layer of complication over the BTP and devolution issues. That would all need to be resolved.

Given that situation, we have particular concern that the BTP has all the necessary powers needed to take enforcement activity at level crossings. I can say that we will give this issue careful consideration and will review the current arrangement to consider how best to address this anomaly, including whether amendments are required to the various Acts and sections that the noble Lord, Lord Faulkner, described. As I say, at this point, it is not clear that we can resolve all this in time for inclusion in the Bill, which is my primary concern. I therefore ask the noble Lord to withdraw his amendment, but we will consider it and see what is possible within the timeframe that we have to work with.

[Lord Faulkner of Worcester]

My Lords, I am grateful to the Minister, and I shall come to what she said in a moment. First, however, I thank colleagues in all parts of the Committee of three different political parties who have supported this amendment. The noble Lord, Lord Bradshaw, and I entered the House at the same time 15 years ago, and we have indeed been consistent campaigners for the BTP during that whole time. The noble Lord will recall that when we started, there was a suggestion, particularly from some forces in London, that the BTP no longer needed to exist as an independent force. There was a mayor who, as I recall, was quite keen on absorbing the BTP within the Metropolitan force and for the BTP’s regional activities to go to county forces. We saw off that very misguided approach through argument and through the good practice of the force whose work and reputation has grown steadily over the past decade. It is now recognised as one of the finest forces in the entire country.

I am grateful for the Minister’s sympathy for this approach. The idea that this has to be held up because of some fear over what might happen in the Scottish independence referendum is a little depressing. I shall read very carefully what the Minister has said. I cannot say that I will not bring it back on Report because, with so much support in this Committee, it will be interesting to see whether the House as a whole takes the view that this is the moment when these anomalies—everybody accepts that they are anomalies—should be corrected. I am grateful for the support from my noble friend on the Front Bench because that will also be of great significance.

The force’s reputation is recognised. The Minister accepts that these anomalies have to be put right. I am willing to withdraw the amendment today, but I think we should come back to it for further debate on Report. I beg leave to withdraw the amendment.

Amendment 63 withdrawn.