Amendments made: No. 45, in
schedule 5, page 63, line 30, leave out 'Paragraph 25' and insert 'Paragraphs 6 and 25'.
No. 46, in
schedule 5, page 63, line 31, after first 'of' insert
's.43 of Police (Scotland) Act 1967 and'.
No. 47, in
schedule 5, page 64, line 11, at end insert—
'( ) sections 11, 12, 17, 42 and 51 of the Police (Scotland) Act 1967 (c.77) (general provisions, &c.),'.—[Mr. Jamieson.]
Question proposed, That this schedule, as amended, be the Fifth schedule to the Bill.
At this point, I should like to raise the issue of the Anti-terrorism, Crime and Security Act 2001, and ask the Under-Secretary why the Government have provided in schedule 5 that paragraph 25 of schedule 7 to the 2001 Act should cease to have effect, such a short time after it passed on
to the statute book. Moreover, section 64 of the Disability Discrimination Act 1995 will have implications for the railways in general. Will the Under-Secretary share with us what the implications of that Act are for the Bill?
There is one glaring omission in the enactments referred to in paragraph 4(2) and in the rest of the schedule: the Human Rights Act 1998, which will have far-reaching consequences for the British Transport police in carrying out their duties. The British Transport police provisions of the Bill are considered to be compatible with the convention, but, for the purposes of the schedule, the convention should have been referred to.
Will the Under-Secretary take the opportunity to put our minds at rest that the jurisdiction and responsibility of the British Transport police will not be frustrated by the 1998 Act? Although British Transport police constables will be given the right to enter railway properties such as railway stations and rail vehicles, and that would engage the guarantee of the right to a private life given in article 8 of the convention and the right to peaceful enjoyment of possessions given by article 1 of the first protocol, the Government consider that any such interference is justified.
The Government consider that the exercise of the power is limited to defined railway property, and that the power is available to the British Transport police constables so that they can ensure public safety and prevent crime and disorder. How can the Under-Secretary square the guarantees given by article 8 and article 1 with the new powers for the British Transport police that enable a constable or a rail accident investigation branch officer to enter a private dwelling and to take away personal property of an individual for the purposes of an investigation by the British Transport police?
I am delighted that the hon. Lady is raising this point. She will recall that we had a similar discussion on the first day of our deliberations. Does she share my view that it would be more appropriate for the British Transport police to obtain a warrant to enter an employee's property, as would be the case for a Home Office police force?
The hon. Gentleman tempts me down a dangerous path. I do not recall his supporting our amendment at the time. However, I fear that you will call me out of order, Mr. Hood, because the schedule that we are discussing refers to the British Transport police. I do not wish to be unhelpful—
I am grateful Mr. Hood. You are too generous.
We argued, and we will continue to argue, that we would prefer that any rail accident investigation branch inspector or investigator be accompanied by a British Transport police officer at every opportunity.
Does the hon. Lady agree that I was entirely in order, as I would otherwise have been ruled out of order for my intervention? I referred specifically to the British Transport police. I repeat my question: does she agree that it would be more appropriate in those circumstances for the British Transport police to obtain a warrant before entering an employee's property? In my view, that would be in accordance with her interpretation of the European convention on human rights.
The hon. Gentleman is simply repeating what I said at our first sitting. I said that we would prefer that the inspector or investigator be accompanied by a police constable and that a warrant or a summons be issued.
Moving rapidly on, may I continue with my arguments? Train companies will be required by order to enter into police service agreements with the new British Transport police authority. That again engages article 1 of the first protocol to the convention, which protects the economic interest of a person running a business. How can the Government justify any interference that the obligation causes in that right on the grounds that it is in the general interest that the railways are policed and that if the British Transport police authority were not funded, it could not make provision for a police force for the railway?
I am playing devil's advocate because it is entirely possible that the purposes of the Bill could be frustrated by the provisions of the Human Rights Act. I imagine that the Under-Secretary will confirm that is not the intention, particularly in view of wide-ranging provisions on which the hon. Member for Bath and I agree. As part of an investigation, a police officer or an inspector or investigator of the rail accident investigation branch will be allowed to enter any property or to enter a private dwelling, whether owned by an employee or by an individual not connected with the rail company, Network Rail or any other body. They will even be able to take away personal possessions as evidence.
We want to help the Government to advance the intended effects of the Bill. We hope that their intention will not be thwarted by the Human Rights Act. Now that the European convention on human rights is part of our national law, action taken by a police officer that breaches its guarantees may be deemed to violate that law. That may happen even when the behaviour that is complained about is authorised elsewhere in domestic law—for example, in the provisions of the Bill. I refer in particular to article 5 of the convention, which regulates the arrest and retention of individuals. It may be argued in court that the deprivation of liberty involved breaches the Human Rights Act 1998.
I want to give the Under-Secretary the opportunity to show that the Government have given careful thought to the effect of the Human Rights Act 1998. Why has reference to that Act been omitted from schedule 5? Was that a deliberate error to which the Government hoped that no one would draw attention? The new powers and responsibilities to be enjoyed by the rail accident investigation branch—particularly those under the Anti-terrorism, Crime and Security Act 2001 and the power to enter a dwelling property without a warrant, summons or the presence of a British chief constable—may be challenged in the courts under the Human Rights Act. Why will paragraph 25 of schedule 7 to the 2001 Act cease to have effect so soon, especially given that it was an amendment of section 90 of the 1996 Act?
Schedule 5 ensures that references to existing legislation on the British Transport police will refer to the British Transport police force as established in clause 3. It is intended that the roles of bodies such as the Strategic Rail Authority and British Transport police committee in respect of the British Transport police should also pass to the authority. Consequential orders under clause 70 will deal with references to those roles.
The hon. Lady's first point was to ask why paragraph 25 of schedule 7 to the Anti-terrorism, Crime and Security Act 2001 will be repealed. Clause 65(1) and (3) make new provision to replace that paragraph so that a single provision will cover the British Transport police throughout Great Britain in relation to the impersonation of a constable, as opposed to our having provision in both the Police Act 1996 and the Police (Scotland) Act 1967. The new provision will also extend the impersonation offence to British Transport police special constables. I hope that that is helpful.
The hon. Lady asked whether we had given careful thought to the Human Rights Act 1998 and whether we had not included a reference to it in the hope that no one would notice. It is rather improbable that if we had left it out, Parliament would have nodded it through without anyone noticing. I assure the hon. Lady that the schedule does not need to refer to the Human Rights Act, as it replaces references to the old British Transport police with references to the new British Transport police. The Human Rights Act contains no references to the British Transport police.
The British Transport police will continue to operate as a police force under the Human Rights Act, and the Bill will have no impact on their operation in that respect. They will have the full current and future police powers to enter property as per the Home Office police forces, subject to legal restrictions. Jurisdiction provisions will allow the British Transport police to continue to police public railway property just as they do today. The hon. Member for Bath said that the police powers apply to Home Office constables in exactly the way that they do to British Transport police constables in nearly all cases. There will be some tiny exceptions.
Part 3 says nothing about entering property apart from railway property, which is mentioned in clause 29, and it says nothing about employee property. Part 1 spoke about the ability of the rail accident investigation branch to enter property. That was comprehensively discussed in a previous debate. I can confirm that a British Transport police constable has no power to enter a private house.
Let us say that the property is owned, for example, by the train operating company or Network Rail, but is occupied, as a dwelling place, by an employee. Is the Under-Secretary saying that the British Transport police would still require a warrant to enter it?
I hope that the Under-Secretary's words will not come back to haunt him, because any self-respecting solicitor or counsel defending a client to the best of his ability will seek to use the Human Rights Act. I just place that point on the record.
It remains the position of the official Opposition—I am delighted that this has gained increasing support from the Liberal Democrats—that on any occasion on which someone acts under the legislation, whether it is a British transport police force constable or a member of the rail accident investigation branch, we would prefer that person to be in possession of a summons or warrant. I cannot believe that that would lead to severe delay. Any person seeking the authority to enter a private dwelling and possibly to remove a personal possession for the purposes of the legislation should do so in the usual way, and warrants and summons should be issued.
We hope that, where possible, the Government would see fit to insist that an investigating branch officer or investigator should be accompanied by a police officer. We have not had confirmation of that at any stage, but it would enhance the provisions of the Bill and lead to an earlier prosecution than might otherwise have been the case.
We have previously discussed impersonation of a constable, and I am mildly surprised that we are getting the answer now to the question that we posed then. The Under-Secretary's answer raises another question. If the Bill creates the offence, what has happened in the intervening period? In Scotland, it has always been an offence to impersonate a constable. Perhaps I have misunderstood what the Under-Secretary said, but it appears that there has been a hiatus for a number of years in which it has not been an offence to impersonate a British Transport police officer. Perhaps he will put my mind at rest on that.
With regard to impersonation of a constable, the Under-Secretary's comments as to why we need to remove paragraph 25 of schedule 7 to the 2001 Act were helpful. We again invite him to consider that it would be appropriate for any British Transport police force constable to seek a summons or warrant, not under his own hand, but from the appropriate authorities in the usual way before entering a dwelling or seeking to remove any personal items
from that private dwelling. Will he also consider that it would be equally appropriate to seek a summons and a warrant in the same way not under his own hand for an investigating officer under the rail accident investigation branch?