Scotland Bill

Lord Faulkner of Worcester Excerpts

Tuesday 19th January 2016 Lords Chamber

[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.

[Lord Faulkner of Worcester (Lab)]

This has been a remarkable debate, and I am sure that British Transport Police officers will be delighted by the degree of support expressed for them in all parts of the Committee, starting with the splendid speech from the noble Lord, Lord Empey, who was followed by the noble Lord, Lord Forsyth.

I shall correct one thing the noble Lord, Lord Forsyth, said. He said he thought the force had been around since the 1850s. That is not right. The force was started in 1825, in the earliest days of the railways. It predates a great many of our normal civil forces. The reason the railway police were formed in the first place was because criminals discovered that by getting on the new-fangled trains they were able to get away from the scene of the crime much quicker than they could by any other means. It was therefore necessary to have a force that was able to operate across county boundaries and country borders.

I find it extraordinary that this proposal to lose that ability should come forward now. I should remind your Lordships that breaking up the British Transport Police has been tried once before. It was done around the year 2000 by somebody called Ken Livingstone, who was Mayor of London. He was anxious to hand the duties of the British Transport Police over to the Metropolitan police force because he felt he had some control over it. The Government of the day, after some deliberation, decided that that was not a sensible thing to do and it was much more sensible to build on the skill and expertise of the British Transport Police; extend its jurisdiction, to which my noble friend Lord Berkeley referred, where necessary; give it, after some reluctance, the opportunity to arm a limited number of its officers, which it had asked for; and, above all, encourage it on what it did really well, such as combating scrap metal theft. The BTP led the government task force on that subject and made a huge contribution to reducing the incidence of metal theft after Parliament passed two important pieces of legislation which regulated that business.

[Lord Berkeley]

My noble friend is too modest to say that he led that legislation through Parliament.

[Lord Faulkner of Worcester]

That is very kind of my noble friend, but I do not think it matters who claims credit for what. What matters is that the outcome of those deliberations was an improvement in the situation in which the British Transport Police played a crucial role. I find it utterly inexplicable that these two clauses are in the Bill. I am sure that in due course they will give the Scottish Parliament with a nationalist majority the opportunity, effectively, to nationalise the BTP in Scotland. It would be a terrible mistake, and I hope the Minister will agree to come back on Report and have these clauses removed from the Bill.

[The Earl of Kinnoull]

My Lords, my interest in this was sparked by a conversation with an SNP MP in December in a passageway in the other place. I asked him whether he thought Police Scotland was ready for the British Transport Police, to which he answered that he was sure there would be some teething problems. I find that very worrying because teething problems essentially mean damage to the citizens of the UK, either because some young lady has been thumped or because drug smugglers or terrorists have got through.

In my commercial career, I spent more than 10 years as the director of mergers and acquisitions for a FTSE 250 company. Over Christmas, I thought about how complicated the demerger of the British Transport Police would be. I will not bore the Committee with a lot of what I thought, but I have done demergers as well as acquisitions, so I know. There would be TUPE, which would be horrible because there will be only one human resources department and one accounting department. There would be career progression problems for the existing staff because there would be a disproportionate number of chief superintendents one side of the border or the other. There would be only one training establishment for each type of training and there would be difficulties with that.

In particular, there is the thing that has caused me problems professionally throughout my career, which is everything to do with data. There would be an enormous discussion about who owns what data. Eventually there would be a decision on that, and then there would be enormous problems over the sharing of those data. Those problems would partially have been inserted by Parliament. All that would lead to an immense decrease in the effectiveness of the force. You would end up with two human resources departments, two IT departments and two sets of expensive management sitting on the top. You would not only have an enormous one-time cost, there would be continuing enormous additional costs and a decrease in effectiveness. That is a jolly bad result for citizens of the UK north and south of the border.

This is an area where the parties who turned up to the Smith discussions probably forgot that, although they were empowered to talk about things going to Scotland, they were not empowered to think about things that would potentially damage English members of our union.

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[Lord Forsyth of Drumlean]

From everyone.

[Lord Faulkner of Worcester]

With lots more to come.

[Lord McAvoy]

We will see about that. The facts of life are that the Labour Party is a democratic institution. We have arrived at support for devolution. The Smith commission worked very hard to come up with the answer to it, as much as possible, and that is what we support. Perhaps my noble friend Lord Berkeley will explain to me later the effects of this on the intricacies of gauges. It is funny, and I laugh as well, but we are dealing with a serious matter. The Labour Party supports devolution and all its consequences. At the end of the day, whether folk like it or not, it is ultimately the Scottish people who will decide. I trust the people. Sometimes that backfires on us, like last year, but I trust the Scottish people because I am a democrat and Scotland under devolution is a democracy.

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[Lord Dunlop]

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

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

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

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

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

[Lord Faulkner of Worcester (Lab)]

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

[Lord Dunlop]

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

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

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

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

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

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

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

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

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

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[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.