Clause 19 - Powers of British Transport Police Force

Infrastructure Bill [Lords] – in a Public Bill Committee at 12:00 pm on 18th December 2014.

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Question proposed, That the clause stand part of the Bill.

Photo of Richard Burden Richard Burden Shadow Minister (Transport)

This is on the British Transport police.

Photo of John Hayes John Hayes Minister of State (Department for Transport)

I am sorry, Mr Hood. My desire to make progress nearly overcame me. Alacrity is a feature of the way I deal with matters in this House.

The first paragraph of clause 19 concerns extending the British Transport police’s jurisdiction under section 100 of the Anti-terrorism Crime and Security Act 2001. We believe that some of the current limitations set out in section 100 of the 2001 Act may compromise the BTP’s effectiveness and may impact on its interoperability with the territorial police forces.

Now is time to bare my soul again, Mr Hood. We have had quite a discussion about this in Government because these issues are challenging and interesting, though technical. Different solutions to the issue of interoperability have been proposed. There are different ways to achieve the objective that I briefly outlined. As a result of those considerations and partly in response to representations we have received, we have decided to remove the requirement for BTP officers to be either in uniform or able to produce a warrant card in order to be able to act beyond their core railway jurisdiction where there is an immediate need to do so and they are acting on their own initiative. Subject to any limitations placed on them under the Police and Criminal Evidence Act 1984, a BTP officer will be able to act whenever immediate intervention is required, whether on duty or not, and regardless of the officer’s regular jurisdiction.

We are also adding the prevention of damage to property to those circumstances in which a BTP officer may act beyond their normal jurisdiction. Extending the jurisdiction to include the safeguarding of property provides a very limited extension of BTP’s remit, exercisable when the officer is satisfied that he has reasonable grounds on which to determine that he should exercise his constabulary powers rather than secure the attendance of an officer from the territorial force, or in response to a request from an officer of that force to act.

We appreciate that there are those who would prefer to see subsection (3) removed in its entirety. That relates to the discussions that I mentioned. That would thereby remove the need for the BTP officer to make a judgment whether to act or to await the attendance of a territorial force officer who would in the normal course of events deal with the particular incident, or to act at the request of the relevant territorial police force.

We believe that members of the BTP, indeed all police officers, have to make judgment calls such as those in relation to all the powers and privileges that they exercise in carrying out their duties. The “reasonable grounds” test is no different from the one they have to exercise when exercising their powers under section 100(2) of the same Act, for example, or when deciding whether to arrest someone.

The power of arrest under section 24 of the Police and Criminal Evidence Act 1984 can be exercised only if a constable has reasonable grounds for believing that it is necessary to arrest the person. As BTP officers must apply the “reasonable grounds” test to all aspects of their functions, requiring them to continue to apply the same test when deciding whether or not they should exercise their powers under section 100(3)(b) should not prove to be a challenge, nor should it result in any uncertainty or delay in responding to the public.

The BTP was created as a specialist force to police the railways, with its jurisdiction limited to railway and railway-related matters other than in exceptional circumstances, or where its operational capacity to carry out its core functions would be impeded.

We believe that it is important that BTP officers are able to act outside their normal jurisdiction, but only when there is an immediate need to do so.

Photo of Tom Greatrex Tom Greatrex Shadow Minister (Energy)

I am grateful to the Minister for giving way. Just briefly, I am following what he is saying and I am sure he will be aware that the cross-party Smith agreement included a recommendation for the British Transport police operating in Scotland to be subsumed within the national police force, Police Scotland. Given what the Minister just said about the way that the British Transport police officers need to be able to do their job on the transport system, has he had any discussion with the Scottish Government or Police Scotland about how this would operate in reality, particularly on cross-border rail services?

Photo of John Hayes John Hayes Minister of State (Department for Transport)

What a delight to hear from the hon. Gentleman for the first time in our considerations. I had a feeling—an instinct—that he might raise that issue, given his deep understanding of and profound interest in the matters. His question was, essentially: what would the impact be of the Smith commission conclusion that the function of the British Transport police should be devolved to the Scottish Government? The answer, in short, is none, as the legislation to enact the recommendations of the commission will not enter Parliament until after the next election. I looked at that quite closely, and the advice I have received is that one can only make laws in prevailing circumstances; we cannot anticipate different circumstances, because of course none of us can reliably know quite what will happen after the election. As a result, it would be inappropriate for us to make assumptions about that.

You are right, Mr Hood, as is the hon. Gentleman, to be interested these matters, and it is true that the Scottish Government have indicated that they are concerned that the proposed amendment will potentially blur the lines of responsibility and accountability between Police Scotland and the British Transport police. They are concerned that any agreement to support the operation without uniform would cause confusion and potentially lead to a reduction of public confidence. That has certainly been the stated position of the Scottish Government.

My judgment is that we have to do what we do on the basis of the circumstances that we face. Having considered this carefully—I looked at all kinds of ways that the objectives that I set out in my earlier remarks could be  achieved—we have probably got this right. I am very happy to enter into further discussion with the hon. Gentleman about that, and if he feels that I need to write to him or the Scottish Government, of course I will. Why would I not take that delightful opportunity? I understand his question and its significance; perhaps I could leave it at that.

I was speaking about the formation of the British Transport police. I do not want to truncate my remarks and so affect their persuasiveness. We believe that it is important that British Transport police officers are able to act outside their normal jurisdiction, but only when there is an immediate need to do so. The exercise of judgment should be conducted in a way that is already the normal practice of police officers on a daily basis. We do not think that the retention of section 100 3(b) of the Anti-terrorism, Crime and Security Act 2001 places an unnecessary restriction on British Transport police officers or is an impediment to the force’s operational effectiveness. The changes do not compromise the existing role of British Transport police in any way. It is our firm view that British Transport police focuses on its core role—that is why we retain the view that we should have a dedicated railway police force—but there will clearly be circumstances under which it should be allowed to stray beyond that core purpose. That is what the public and police officers would expect, and it is the right thing to do.

The second paragraph of the clause pertains to the powers of the British Transport police to issue notices under section 172 of the Road Traffic Act 1988. It recognises that the drafting of the Act failed to provide the BTP with the same powers as territorial police forces to require vehicle owners to disclose the identity of drivers who have committed road traffic offences. That presented a serious obstacle for the BTP when investigating and prosecuting road traffic offences occurring in the railway environment. Again, we discussed that at some length. I am thinking of incidents around or by a railway station or other railway property.

Section 172 empowers the police to write to vehicle keepers and request information on who was driving the vehicle at the time an offence was committed. Failure to comply with the request is an offence carrying a court fine of up to £1,000 or a fixed penalty of £200. Given the BTP’s role in road traffic law enforcement, it seems sensible that it should have the same information-seeking powers as other police forces.

The potential for a serious accident involving a road vehicle and a train where a car is left on a level crossing—we talked about this a great deal in the Department—or parked in an inappropriate manner in the railway environment requires that the BTP be able to identify drivers committing offences within their jurisdiction and bring the relevant legal proceedings. There has been a particular request to make that change in respect of level crossings. I need not elaborate on that; the case for why it matters is almost implicit.

As section 172 is a non-devolved matter in relation to Scotland and Wales, the proposed change will apply to all of Great Britain and does not require a legislative consent motion. On that basis, I commend the clause to the Committee.

Photo of Richard Burden Richard Burden Shadow Minister (Transport) 12:15 pm, 18th December 2014

We now move to part 2 of the Bill. I welcome the opportunity to say a few words about the extension of the powers of the British Transport police covered in this clause. The extension of powers will enable the force to gather information and prevent damage to property. The purpose of the provisions was well set out by Lord Faulkner in the first Committee stage of the Bill in the other place.

The powers, jurisdiction and role of the British Transport police have been the subject of extensive debate over the past decade. Hon. Members will know that there is a consensus, as the Minister indicated in his remarks, that the British Transport police does an effective job not only of tackling crime on UK railways but of supporting policing more generally in society. There were officers on the railway in 1826, before the Met was established in London, and today the British Transport police undertakes operations from counter-terrorism and firearms to public order and investigative policing. The force participates in joint police initiatives, including on cable theft, the G8, the Olympics and so on.

As it became clear in earlier stages of debate on the Bill, and as the Minister has mentioned, the BTP’s current jurisdiction, which encompasses only the railway, seems to have a level of absurdity about it. Currently, if a BTP officer is not on the railway and comes across an incident requiring enforcement action, they must first go through a process that seems a bit nonsensical if we are trying to combat crime. They are required to contact the local police force to ask whether they will allow the BTP to deal with the incident. They then have the power to take enforcement action, but only after a delay and at the risk of losing either evidence or the offenders themselves.

BTP officers are also required to be in uniform or in possession of documentary evidence proving that they are police officers, such as a warrant card, when there is no such requirement for any other police officers. Finally, the fact that BTP officers are currently prevented from obtaining the identity of the registered owner of a vehicle committing an offence is clearly a problem for safety. The Minister referred specifically to incidents involving level crossings, which can lead not only to offences but to tragic consequences unless we get it right.

The artificial barrier that currently exists between what the BTP can and cannot do is bizarre and confusing. Let us consider what happens if an incident such as a fight or an assault occurs just outside a railway station. There will be trained officers potentially powerless to take action. As I said on Second Reading, the current jurisdiction rules just do not make sense to the public, who do not discriminate between a Home Office police officer and a British Transport police officer. They rightly expect a responsive service from any police officer at the scene of a crime or at an incident of public disorder.

We are pleased that the Bill now enables the BTP to investigate drivers who commit road traffic offences on the railway; permits them to take action to prevent property theft—such as theft of a bicycle at a cycle rack at a station—without needing to involve an officer from a different force; and enables BTP officers to act on their own initiative when in plain clothes and without a warrant card, if immediate intervention is required. However, one anomaly remains. The Government have  not removed the need for BTP officers to make a judgment call on whether to act or wait for a local officer who would normally deal with the incident. The Government say that removing the need for that judgment would risk distracting the BTP, which is paid for by the railway industry, from its primary purpose of protecting the railway.

I would like to question the Minister further on that. Although a judgment call on such matters might seem fairly straightforward, as the chair of the British Transport Police Authority has stated, in reality it

“requires BTP officers to work through a complex legal test, often in quick time, which can result in uncertainty, challenge and delays in responding to the public”.

Under the strictest sense of the legislation, BTP officers will still have to call their Home Office counterparts to attend the scene of a crime, otherwise they could be attacked by lawyers for not acting properly. I am not suggesting that that would happen in practice a lot of the time. However, when we are framing laws, we have to think about the unusual and what a skilled team of lawyers would do in that situation.

That requirement on BTP officers does not apply to any other officers. It means that BTP officers will still be treated differently, which does not seem right. I do not think that the Government’s argument—that BTP officers will suddenly go rogue and neglect their primary duty to police the railways—stands up. In fact, that assertion was rejected by the chair of the BTPA, who said that the BTP is

“committed to reducing crime and disruption on the railways by 20% by 2019. This focus, reinforced by the oversight of the Authority and the requirement to satisfy BTP stakeholders will ensure that strong control will be exercised with regard to any wider jurisdictional power granted for BTP”.

I urge the Minister to look again at that issue. Ending that requirement is supported not only by the BTP, but by the chair and CEO of the College of Policing, and the British Transport Police Federation. Fully implementing the amendment proposed by Lord Faulkner in the other place is not about changing the primary purpose of the BTP; rather, it is about giving its officers the same status, position and legal protection as every other police officer in the UK.

Finally, will the Minister say a bit more about the Smith commission? I understand his point that until the Smith commission provisions are implemented, they are not implemented, and things have to be done. I can understand that; however, the Minister in the other place said that

“the Scottish Government have decided that they are unable to support such an amendment.”—[Official Report, House of Lords, 3 November 2014; Vol. 756, c. 1517.]

There is an issue about why that is. It seems important to me that there is a dialogue between the Scottish Government and the UK Government on the process of the BTP’s devolution to Scotland more generally.

On 15 December the Under-Secretary of State for Transport, the hon. Member for Devizes (Claire Perry) wrote:

“There have been no discussions between the Secretary of State and his counterpart in the Scottish Government about the implications for the future of the British Transport Police.”

On the same day in the other place, Baroness Kramer replied to a written question by saying that the Government

“has committed to delivering draft clauses by 25 January 2015.”—[Official Report, House of Lords, 15 December 2014; Vol. 758, c. WA4.]

She said that those clauses would include one on the BTP. We need to establish whether the Government are talking to the Scottish Government at the moment. If they are not, they should be. We need to end the confusion on that, so I hope the Minister will write to us and clarify some of the points that my hon. Friend raised.

As I have given a general welcome to the clause, I do not intend to divide the Committee. In two days we have covered all the Bill’s provisions relating to the Highways Agency changes, and no doubt there will be more discussion of that on Report. There will be votes on new clauses at the end, but we have completed those discussions. In the past half hour, assuming there are no further comments—of course hon. Members have the right to make further comments—we have completed the entire second part of the Bill. As shadow Minister, it is not for me to say what might be an appropriate place to pause the Committee’s deliberations, but as it is Christmas, this might be an appropriate time. If that suggestion is taken up by those who take up such suggestions, I wish you, Mr Hood, a happy Christmas. I wish all members of the Committee a happy Christmas. If this is the last time I speak in Committee this side of Christmas, I look forward to seeing everyone in the new year.

Photo of John Hayes John Hayes Minister of State (Department for Transport)

The hon. Gentleman, as I anticipated, has considered this matter with his usual diligence and has raised the important questions. There is the considerable question of the judgment call of police officers in such circumstances. He is right to suggest that we could have chosen to address it differently. As with so many things, it is not an open-and-shut case, but I think that we have reached the right position. I gave this a lot of consideration, and I think the position is the right one because we expect police officers, as I emphasised earlier and I now amplify, to make judgment calls in the normal course of their work. It is the business of a police officer to exercise judgment, and they do so daily in responding to often challenging and extremely varied circumstances. That includes making judgment calls about their powers and privileges. It is about the exercise of their powers, and as MPs, notwithstanding our strong support for the police, we all sometimes take up constituency cases in which we think that the police have not exercised their power correctly. Those cases are always dealt with and taken seriously by chief constables, as you know, Mr Hood. I am an extremely robust and committed defender of our police forces, and I have always taken the view that they are what stand between us and chaos. I am a very confident advocate of the police’s capacity and ability to exercise the judgment calls that are central to this short debate.

To that end, the “reasonable grounds” test is no different from the one that police have when exercising their powers under section 100(2) of the Anti-terrorism,  Crime and Security Act 2001. The power of arrest under section 24 of the Police and Criminal Evidence Act 1984 can be exercised only if a constable has reasonable grounds for believing that it is necessary to arrest someone. As BTP officers must exercise reasonable grounds in all aspects of their functions, requiring them to continue to apply the same test when deciding whether to exercise their powers should not prove to be a challenge, nor should it result in any uncertainty or delay in responding to the public. In the end, the acid test is whether the practical application of these powers delivers the outcome that we all seek—that officers, exercising their judgment, will respond to circumstances in or around a railway station, or indeed elsewhere, where appropriate.

I think that we have got that about right and that we will be proved right. I am reassured that that is the case by the fact that the chairman of the British Transport Police Authority, whose letter the hon. Gentleman referred to, had a meeting with Baroness Kramer subsequent to writing that letter and I think that she now accepts the Government’s position. I will, however, clarify that point.

Similarly, on devolution I am happy to clarify all aspects of the relationship between the Scottish Government’s position and our position in the way I suggested earlier to the hon. Gentleman. I am also happy to communicate with the Scottish Government to clarify their position further to that debate, if that would be appropriate—it may well be.

These are never open-and-shut cases, but I think that we have come to the right, balanced position, subject to further deliberation on the Scottish issue in the way I just described. I am also happy to have further discussions with British Transport police if there is such a need.

I think I can recommend with some confidence that the clause stand part of the Bill. However, before I sit down, let me add my good wishes to those offered already to you, Mr Hood, as well as Sir Roger Gale and all members of the Committee. The hon. Member for Birmingham, Northfield is right that we have made good progress.

I dedicate this to my good friend, the hon. Member for Rutherglen and Hamilton West:

“No love that in a family dwells,

No carolling in frosty air,

Nor all the steeple-shaking bells

Can with this single truth compare—

That God was man in Palestine

And lives today in bread and wine.”

Question put and agreed to.

Clause 19 accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Dr Coffey.)

Adjourned till Tuesday 6 January at twenty-five minutes past Nine o’clock.

 Written evidence reported to the House

IB 08 Campaign for Better Transport

IB 09 Chartered Institution of Highways & Transportation (CIHT)

IB 10 Sustrans

IB 11 James A. Coghlan

IB 12 UK Green Building Council

IB 13 National Farmers’ Union

IB 14 Letter from Mrs Anne Main MP