Justice Committee

Meeting date: Tuesday, May 30, 2017

Official Report 664KB pdf

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Railway Policing (Scotland) Bill: Stage 2

Item 7 is consideration of the Railway Policing (Scotland) Bill at stage 2. I ask members to refer to their copies of the bill, the marshalled list of amendments and the groupings.

I welcome the Minister for Transport and the Islands and his officials.

Section 1—Provision for policing of railways and railway property

Amendment 1, in the name of the minister, is in a group on its own.

The committee’s stage 1 report recommended that

“the new section 85C(1) of the Police and Fire Reform (Scotland) Act 2012 (inserted by section 1 of the Bill) be amended at Stage 2 so that it is subject to the affirmative procedure.”

That recommendation picks up on the conclusion of the Delegated Powers and Law Reform Committee’s stage 1 report on the bill that that procedure should be amended. The procedure relates to the future regulations that are to specify which rail operators, or classes of rail operator, are covered by the requirement to enter into a railway policing agreement. The DPLRC’s rationale for recommending a change to the procedure is that it provides for a greater level of parliamentary scrutiny of those regulations.

In correspondence with the DPLRC, we set out our view that the power to make those regulations is narrowly drawn and could be used only for the specified purpose. We also explained our view that applying the negative procedure to those regulations provided an appropriate balance between the need for parliamentary scrutiny and the effective use of parliamentary time and resource. However, as our written response to the committee’s stage 1 report indicated, in light of the views of both committees and the fact that such matters are always a balancing exercise, I am content to accept the recommendation. Therefore, I propose amendment 1 to change the procedure to the affirmative one.

I move amendment 1.

Amendment 1 agreed to.

Section 1, as amended, agreed to.

Section 2—Chief constable’s functions in relation to policing of railways and railway property

Amendment 3, in the name of Liam McArthur, is grouped with amendments 8, 9 and 14.

As colleagues will recall from the stage 1 debate, I have concerns about the content of the bill as well as the approach that the Government has taken.

On the latter, it was a mistake for ministers not to consult on more than a single option—merging the British Transport Police with Police Scotland. I recognise that that was their preferred option and understand that they might have found it difficult to persuade BTP officers and staff and the wider public that they were genuinely willing to consider others. However, not to bother asking for views comes across as blinkered, dogmatic and even a little arrogant. As a consequence, Parliament has been presented with a bill that has not been properly road tested and has attracted concerns, controversy and criticism from the majority of respondents to the Government’s consultation and to the committee’s call for evidence.

The amendments in the group, along with others that would inevitably have to be lodged for stage 3, seek to explore an alternative option. Clearly, this approach and the timing are less than ideal, but that is scarcely my fault or that of the amendments. It is certainly not the fault of the British Transport Police Authority, which made alternative proposals well before the bill was introduced to Parliament. We have the opportunity to give the Parliament and the Government greater oversight of the British Transport Police functions in Scotland. That opportunity respects the commitments and recommendations of the Smith commission and avoids many of the risks that the committee has heard arise directly as a result of the Government’s hasty decision to press ahead with full-blown merger.

I move amendment 3.

I hear the policy position that Liam McArthur expresses. I am glad to see that the Conservatives are now on the same side as the Scottish Government, as their manifesto proposes to abolish the British Transport Police south of the border without providing for any other options. However, that is neither here nor there.

Will the member take an intervention?

No, he will not. You would not take one from me last week.

Liam McArthur’s choice of amendments is rather odd because, when we look at what he is doing, we see that the effect is to remove the oversight of the British Transport Police Authority from the British Transport Police in Scotland—that is fair enough; we can choose to do that—without putting any alternative oversight into the bill as it would be amended by his amendments. That seems a rather odd way to progress the policy position that he adopts. The construction of his amendments, by leaving section 1 in place, also creates a set of duties for the Scottish Police Authority in relation to railway policing in Scotland without correspondingly creating any oversight from the SPA for railway policing.

It seems a rather curious set of amendments that are not practically constructed to deliver the policy position that Liam McArthur seeks to take. I have the more principled point that I disagree with his policy position but, if the position were to be accepted, the amendments would not serve it properly.

I am happy to support the amendments that Liam McArthur has lodged. The concerns that he raised are the ones that I have had throughout the bill process—that only one option was consulted on and that no other options were considered despite the fact that the British Transport Police Federation indicated in its written evidence that there were two other options that should have been consulted on and discussed. Not to include them is short-sighted and a fundamental flaw in the bill.

I am delighted that Stewart Stevenson recognises a Conservative victory in the general election. I will make sure that I repeat that as I go around my area. He will also know that what the Conservative Party proposes is quite different from what the Scottish nationalists propose in Scotland.

I support these amendments and reiterate the points that Liam McArthur made, which I made during the stage 1 debate in the chamber. The Government had only one view on the matter and did not consult the public. It is perfectly understandable why it did not consult on more options because, when people responded to it and to the committee, the majority were against the proposed merger of the British Transport Police with Police Scotland. That was a clear message. The Government should listen to that, and I hope that it will take cognisance of it if the amendments are agreed to.

I will not support Liam McArthur’s amendments for some of the reasons that Stewart Stevenson outlined. With regard to options, it is clear that the model that was chosen is the only one that makes the British Transport Police accountable to Scotland.

Will the member take an intervention on that point?

No.

Liam McArthur’s amendments also delay implementation until 2027, which is not acceptable. In effect, they ride a coach and horses through the bill, so I will not support them.

The key point is oversight, regardless of the model. I accept that people wanted different models but I do not know anyone who thought that it was appropriate to have less oversight, particularly at this juncture. We have seen in recent times the absolute need for scrutiny. I will not support amendment 3.

I am here as a substitute, but I have managed to watch a lot of what has happened approaching this stage. Although Liam McArthur makes his points as eloquently as always, I will not support him, because I agree with everything that Stewart Stevenson said.

I find it bizarre that Douglas Ross is trying to defend the Tory party’s conversion to the Scottish Government’s policy. The wording of its manifesto is:

“We will create a national infrastructure police force, bringing together the Civil Nuclear Constabulary, the Ministry of Defence Police and the British Transport Police to improve the protection of critical infrastructure”.

Is that not a very similar position to the Scottish Government’s? That clearly tells us what the Westminster Government’s position is but, obviously, if a Tory comes over the border in a train, plane or bus, they change their mind just because the Scottish Government comes up with the idea. The Tories need to look at themselves and the practicalities of what we are trying to achieve, which is to have a police service that is fit for purpose.

Only one option was consulted on and that was a great mistake. Therefore, I support amendment 3. In relation to the point that Stewart Stevenson made, the amendment merely reverts to the status quo and we have concurrent jurisdiction at present.

12:00  

I thank Liam McArthur in particular for his explanation of the reasons why he has lodged his amendments. They reflect much of what he said at the stage 1 debate.

Liam McArthur and other committee members will be fully aware of the Scottish Government’s intention in introducing the Railway Policing (Scotland) Bill, which is to make use of the powers over railway policing that are now devolved to this Parliament by integrating the British Transport Police in Scotland into Police Scotland. We have made that intention abundantly clear from the outset, and it has been a long-standing policy position of the Government for many years, both before and after our proposals to the Smith commission that railway policing powers should be devolved to the Scottish Parliament and that the BTP should be integrated into Police Scotland.

That may not take away from Liam McArthur’s concerns. Where they are constructive, the Government will of course always reflect on them. However, amendments 3 and 8 would leave the Scottish Police Authority with a power to enter into railway policing agreements with railway operators, under which Police Scotland would police the railways and railway property in Scotland without having all the powers needed to carry out that policing on a routine basis. There would be no duty on the chief constable of Police Scotland to ensure that policing of the railways was carried out in accordance with those agreements.

Amendment 9 would retain the policing functions of the BTP in Scotland but, as Stewart Stevenson eloquently said, the governance duties of the BTP Authority would no longer exist. If the intention underlying that amendment is that the BTP should continue to police the railways and railway property in Scotland, it is not clear to me how that is to be reconciled with the lack of any governance and accountability relationship between the Scottish Police Authority and the BTP. It is equally unclear how funding for the BTP’s policing of the railways in Scotland would be secured, as section 2 continues to permit the SPA to enter into railway policing agreements in respect of Police Scotland only.

If the objective is that the BTP should police the railways in Scotland and be accountable for that to the Scottish Police Authority and to this Parliament while also policing the railways in England and Wales with accountability for that being to the BTPA and the UK Parliament, then my clear and previously expressed view is that that would prove complex and confusing for all concerned. It is hard to see how Scotland’s interests and geography would receive the attention that they deserve within a framework that will inevitably remain dominated by the complex needs of railway policing in London and the south-east of England.

How that accountability might work is also far from clear. The legislative basis for it would need to be established, and the amendments do not set that out. However, even if they did, for the reasons that I have just given, we do not think that that would be a satisfactory solution.

Putting all that aside, and as other members have mentioned, Liam McArthur will be aware of the manifesto commitment that the Conservative Party has made—both the UK party and the Scottish Conservatives—to

“create a national infrastructure police force, bringing together the Civil Nuclear Constabulary, the Ministry of Defence Police and the British Transport Police to improve the protection of critical infrastructure such as nuclear sites, railways and the strategic road network.”

If the Conservatives win the election and have their way, there will no longer be a British Transport Police. We would have to wait to see exactly what form the new national infrastructure force would take. I do not expect that this Parliament is likely to have any influence over that, but we would of course keenly await news if we were depending on it to police Scotland’s railways. I am not aware whether that commitment has gone out to public consultation or indeed whether other options were considered.

From what we know, I hope that I can persuade Liam McArthur that rejecting the opportunity to have a railway policing function within Police Scotland that is fully accountable to the people of Scotland and the Scottish Parliament would not be a good use of the powers over railway policing that have been devolved.

The alternative before us, if a UK Conservative Government is returned, would appear to be to have railway policing in Scotland integrated with the policing of the strategic road network of England and Wales, but not with that of Scotland, and integrated not with the policing of the whole of Scotland’s transport infrastructure—ports, roads and airports—but instead with the policing of nuclear sites.

It also appears from various press reports that the national infrastructure police force would be predominantly an armed force—that is what a recent article in the Police Oracle suggested. I invite Liam McArthur to reflect on whether that is the path that he wishes to go down.

I ask Liam McArthur not to press the amendments but, if they are pressed, I urge the committee to reject them for the reasons that I have set forth.

I thank everybody for their contributions. In particular, I thank Douglas Ross, the convener and Mary Fee for their support for the amendments. I recognise that my concerns are shared by some colleagues on the committee.

I also thank those who do not feel able to support the amendments—either because of the principle or because of the way in which they were lodged—for the way in which they conveyed their concerns. The comments from Stewart Stevenson set the tone for those of others. The timing and the approach are not necessarily of my choosing, but the amendments are an attempt, even at this late stage, to fashion a way to road test the alternative approach that the BTPA set out, which it did in good time and which could have been consulted on. The BTPA made it clear that statutory oversight of BTP functions in Scotland was perfectly possible short of a full merger with Police Scotland. As I said before, it is regrettable that that was not explored explicitly.

I thank George Adam for referring to my comments as eloquent. I do not recall that he ever said anything as nice about me in the however many years it was that we were on the Education and Culture Committee. Once the whips find out what he said, his stay on the Justice Committee may be time limited.

I also thank the minister for engaging with me over my concerns about the bill, from the outset and throughout, and I acknowledge his willingness to engage with the stakeholders who raised concerns about the proposals. Nevertheless, we are where we are as a result of the Government approaching the matter on the basis that there is only one option. I do not accept that. A great deal more work will need to be done ahead of stage 3 to address the concerns that have been raised about the need for proper oversight of BTP functions in Scotland.

I will press amendment 3.

The question is, that amendment 3 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fee, Mary (West Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Ross, Douglas (Highlands and Islands) (Con)

Against

Adam, George (Paisley) (SNP)
Evans, Mairi (Angus North and Mearns) (SNP)
Finnie, John (Highlands and Islands) (Green)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 3 disagreed to.

Section 2 agreed to.

After section 2

Amendment 4, in the name of Douglas Ross, is grouped with amendments 5 to 7.

Members and, indeed, the minister will be aware that during our discussions as a committee and with numerous witnesses, concern was raised about the training of officers if the integration of the BTP and Police Scotland goes ahead. At this stage, it is important to remind ourselves of our deliberations with some quotations.

I asked the rail operators how they would react if Police Scotland said that it was not going to put all officers through the training for personal track safety certificates. Neil Curtis of Direct Rail Services Ltd said, “We would be concerned,” and Darren Horley of Virgin Trains said:

“We would be very concerned.”—[Official Report, Justice Committee, 21 March 2017; c 27.]

I move on to the panel of witnesses that included Nigel Goodband of the BTP. I asked:

“What implications will there be if officers in Scotland are not trained to the same level as BTP officers and they do not have a personal track safety certificate?”

Nigel Goodband replied:

“Every officer in Police Scotland who intends to police the railway—or go anywhere near the railway—will have to have the personal track safety certificate.”

Chief Superintendent McBride, also of the BTP, said:

“We go through ... personal safety training because, from a health and safety point of view, it is necessary to protect our officers ...That is why we do ... PTS. The benefits that flow from that are all geared to the public and to recovering operations more quickly when they have been brought to a stop by a criminal act or mental health episode.”

When Michael Hogg of the National Union of Rail, Maritime and Transport Workers spoke about BTP officers, he said:

“They are properly trained, and having staff with a personal track safety certificate is crucial. Anything else is pure nonsense, as far as we are concerned.”—[Official Report, Justice Committee, 14 March 2017; c 40, 41.]

Should the merger go ahead, it would be “pure nonsense” for us as a committee not to include our clear expectation that all officers in Police Scotland who have an opportunity to move into railway policing either as dedicated railway policing officers or at the request of the chief constable and others should—they must—have a personal track safety certificate.

I have lodged a further amendment that stipulates and requests that the Scottish Government brings information on the costs of training to the Parliament for scrutiny. That issue was raised by Dr Murray in her paper, too.

My amendments add to the committee’s deliberations and discussions. Should the bill be passed, the amendments will be vital in ensuring that both officers and the public whom they serve in policing our railways are adequately protected.

I move amendment 4.

I will speak to amendment 6, which is in my name, and the other amendments in the group. Amendments 6 and 7 complement Douglas Ross’s amendments 4 and 5. Amendments 4 and 5 provide that Police Scotland officers must be trained and the cost of that training must be reported. My amendments 6 and 7 seek to ensure that no officer can enter a railway property without a PTS certificate having been obtained.

At stage 1, the committee heard evidence from the British Transport Police Federation that

“Every officer in Police Scotland who intends to police the railway—or go anywhere near the railway—will have to have the personal track safety certificate.”

The RMT agreed, saying:

“Police Scotland would not have access to our railways if there was a derailment or a collision or any trespass on a railway. If Police Scotland officers do not have a PTS certificate, they cannot go on or near the running line.”—[Official Report, Justice Committee, 14 March 2017; c 40, 59.]

The rail operators all concurred with those statements.

The stage 1 report notes that

“The Committee wrote to Police Scotland for clarification on the nature and type of training that it intends to provide to all police officers post-integration, and on whether all officers are to undertake Personal Track Safety Certificate training.”

In his response, Assistant Chief Constable Higgins explained that Police Scotland’s

“training curriculum for new recruits at SPC”—

the Scottish Police College—

“is currently under review”.

Amendment 6 clearly sets out the requirement for personal track safety certificate training for police constables, and amendment 7 would ensure that the training would be to the same standards as that attained by BTP officers, by requiring the making of regulations specifying the level of training. That would be done in consultation with the Office of Rail and Road and Network Rail, which specify the current level of training for the BTP. The amendments would ensure that police officers operating on the railways undertake personal track safety certificate training to the level that BTP officers are required to attain.

Do members have any comments on or questions about the amendments?

I want to engage on the construction of the amendments, and I will address amendment 6 in your name, convener. Before I do that, I agree with the quote—we could hardly disagree with it—used by Douglas Ross: every officer who intends to police the railway needs to have a personal track safety certificate. However, we need to be cautious about what that means.

Amendment 6 says:

“A constable must not enter a railway property ... unless that constable has completed personal track safety training.”

What is a “railway property”?

Will the member give way to allow me to clarify the quote that he alluded to?

I only cited part of the quote—I accept that.

It is important to give the full quote.

I invite you to complete the bit that you think I missed that matters.

I am grateful to the member for giving way. I gave the full quotation, which is:

“Every officer in Police Scotland who intends to police the railway—or go anywhere near the railway—will have to have the personal track safety certificate.”—[Official Report, Justice Committee, 14 March 2017; c 40.]

12:15  

I accept that, but you will find that that will merely reinforce the point that I am about to make, which is this: what is the definition of “railway property”?

The definition of railway property in the bill, at proposed new section 85M(1) of the Police and Fire Reform (Scotland) Act 2012, provides a list, which specifically includes

“a station”

and

“a train used on a network”.

Without a track safety certificate, a police constable would not be able to enter a station that I am perfectly entitled to walk into any time I choose to do so although I do not have a track safety certificate. Furthermore, I can enter and use a train without having a track safety certificate but amendment 6 would prohibit a constable from being able to exercise that same right.

Proposed new section 85M(3) of the 2012 act makes further reference to the definition of “railway property” in the Railways Act 1993. Section 83 of the 1993 act states that a station

“means any land or other property which consists of premises used as, or for the purposes of, or otherwise in connection with, a railway passenger station or railway passenger terminal (including any approaches, forecourt, cycle store or car park), whether or not the land or other property is, or the premises are, also used for other purposes”.

Therefore a police constable—who is a constable, whether on duty or not—would be prohibited from cycling to a station and putting his bicycle in the car park, and from purchasing a ticket in the station booking office, because he is not permitted to be there without a track safety certificate. He would also not be permitted to use a train to travel to another destination.

It actually goes further than that. There are already circumstances where police constables, as part of their job with Police Scotland, enter the tracks without track safety certificates—that would be prohibited by amendment 6. For example, there is a level crossing on the eastern outskirts of Inverness. Police in hot pursuit of a criminal fleeing an act of criminality would, without a track safety certificate, be unable to progress across that level crossing on to the railway to pursue a criminal if amendment 6 were agreed to. In terms of a construct that is trying to give effect to the policy position that is being espoused, it does not work at a practical level.

I turn to amendment 4, in the name of Douglas Ross, which is the lead amendment in the group. My specific question is: who needs to have track safety training? In the past week, we have seen Police Scotland officers supplementing BTP officers, going on patrol on the concourse of Waverley station without track safety certificates. We can see the quite proper collaboration that currently takes place.

Who should determine what training particular constables require for particular tasks? I do not think that it is the duty of MSPs—or, for that matter, the duty of the minister—to determine that. It is an operational matter for the chief constable to determine.

It is entirely proper that the initial training of constables should refer to the duties that Police Scotland will exercise in relation to railway policing if the bill is passed, and constables should be familiar with the constraints on a constable’s proper actions.

The same applies to armed police. To be blunt, if a policeman who is not qualified to be an armed policeman is standing adjacent to an armed policeman who falls over and drops his gun, I am dubious as to whether that policeman should pick up the gun because they do not know about handling guns.

Only people who are properly trained should engage with the dangers that are specific to the environment of railway policing. However, amendment 4 comes to a very different conclusion.

Essentially, amendment 5 follows on from amendment 4. I have no particular objection to the provision of annual reports to ministers and Parliament about what is going on in the police force. If we are talking about information on a necessary part of training, that is all well and good.

However, with regard to the issue of limiting access to stations, it is clear that the amendments in the convener’s name simply do not serve the intended policy purpose. There appears to be an almost deliberate attempt to make it impossible for Police Scotland officers to continue to discharge the duties that they currently perform without any reported difficulties in relation to certain aspects of what is currently, and would be in future, defined as “railway property”.

I align myself with much of what Stewart Stevenson says about the implications for forensics if the amendments in this group are agreed to.

I highlight my specific police experience. As a police dog handler, I performed mountain search-and-rescue duties, during which I was conveyed in—indeed, winched into and out of—Royal Air Force, Royal Navy and civilian helicopters. In the course of those duties, I had to carry pyrotechnics, which brought their own issues. I conveyed my dog on a fixed-wing passenger service, occasionally in a motor launch, and in one instance on a skidoo. I had to deal with firearms, albeit that they were deactivated, as part of my training. I had a second dog for detecting explosives, and I had to handle a variety of explosives. Colleagues with drugs dogs had to deal with a variety of drugs. When I became a Scottish Police Federation official, I became aware of the role of vehicle examiners and the evolving nature of the issues that, when examining vehicles, we had to be aware of, such as the corrosive effect of brake fluid.

The point is that health and safety legislation applies to all those areas. The bill before us today is not about micromanaging the police, and the provisions in the amendments contain things that, to my mind, should not be in the bill. I therefore do not support the amendments.

Douglas Ross set out clearly a number of the explicit concerns that we heard in evidence at stage 1 about training for those accessing the railways and railway property. Those concerns were reflected in the committee’s report.

From Police Scotland, we heard assurances that a training assessment would be undertaken. We have no reason to doubt that, but to an extent it rather reinforces the point about the rushed nature of the bill. It even underpins some of my arguments for lodging certain amendments that appear in a later group.

Nevertheless, whether or not the specific amendments in this group deal with the precise concerns that the committee acknowledged and reflected in its stage 1 report—and I am interested to hear the minister’s response—I certainly support the idea of toughening up the language in the bill around training, which was a central concern throughout the evidence that we heard at stage 1.

I cannot add anything much to what Stewart Stevenson said, as he covered all the points. I agree with John Finnie that the provisions in the amendments are far too restrictive and specific; to be frank, they are unworkable. The provision of training is an operational policing matter. It is not the responsibility of the Government; it is the responsibility of the chief constable. For those reasons and others, I will not support the amendments.

Liam McArthur has more than adequately expressed many of the sentiments that I was going to express. I am minded to support Douglas Ross’s amendments on training. It is worth remembering that in the stage 1 evidence we heard concerns regarding the loss and dilution of specialist skills among well-skilled professional railway staff. In addition, every rail union in the country is opposed to the bill.

When the RMT gave evidence, it warned that it might take industrial action if the bill were to go ahead, citing concerns about the safety of the workforce and the travelling public. It is worth reminding ourselves of that when we consider these amendments. If the bill goes ahead, it needs to be far more prescriptive and detailed about the minimum level of training required by officers policing the railway and the refresher training that they would need.

I share some of Stewart Stevenson’s concerns in relation to amendment 6 because of the use of the phrase “railway property”. If agreeing to that amendment would mean that an officer could not enter a railway station, for example, I would be unable to support it. However, I am happy to support the amendments on training.

As members have said, all the amendments in this group seek to dictate to the chief constable of Police Scotland the nature and level of training that officers working in a specific area of operational policing should have. We are not aware of any precedent for Parliament prescribing requirements for the chief constable in that way, and the Scottish Government cannot support it. The chief constable is responsible for operational policing. His responsibilities include ensuring that officers across Police Scotland have the specialist training that they need to carry out their duties. That is kept under continual review to meet operational requirements.

Neither the Scottish Parliament nor the Scottish Government should seek to intervene in the business of operational policing by dictating a fixed set of training requirements for railway police officers. We do not prescribe what firearms or driving qualifications, or the many other qualifications listed by John Finnie, officers should have—such things are rightly operational policing matters—and we should not constrain specialist railway police in that way.

Furthermore, the Government’s view is that in lodging the two sets of amendments in the group, members have misunderstood the information that Police Scotland has provided to the committee on the different levels of railway policing training that it proposes to provide to officers in different parts of Police Scotland, which reflect different operational needs. Committee members can see for themselves, from the letter that Police Scotland sent last week in response to the committee’s stage 1 report, that it is not Police Scotland’s intention to provide all its 17,000-plus officers with a personal track safety certificate. The certificate will be for officers who work within the railway policing specialism, and the number will be similar to the number of certificates currently provided to BTP officers in Scotland. If members choose to press the amendments, they will be seeking to override the professional view of Police Scotland.

Police Scotland’s recent letter also makes it clear that it has clear operating procedures—they are currently under review, which is being done in conjunction with the BTP—which state that its police officers should not go on to the tracks when they attend an incident that is related to the railway. Should there be a requirement to go on to the tracks, a nationally agreed process demands that a competent and trained member of the rail industry is present at the scene to advise. As has been mentioned, Police Scotland is currently working with the BTP on a training needs analysis and we should allow that work to continue.

If amendment 4, from Douglas Ross, were to be agreed to, we would be faced with the substantial cost of providing personal track safety certificates to around 17,000 officers who would not have an operational requirement for one. If amendments 6 and 7, from Margaret Mitchell, were to be agreed to, a police officer who did not have that certificate would be unable to exercise the power of entry to railway property, as Stewart Stevenson mentioned, even if that was to access an area nowhere near the track—for example, a locked station building, a railway station or a train. We would be in the ludicrous situation in which committee members and I could go into a station or get on to a train, but a police constable who did not have the certificate could not. I am sure that no one would want us to be in that position.

Although amendment 5 is dependent on amendment 4, I cannot support it on its own terms. Amendment 5 would require separate training plans and costs to be published. The bill already places a statutory requirement on the Scottish Police Authority to engage with the railway industry and others on service, performance and costs. The SPA will, of course, be accountable to this Parliament for that engagement, as it is for other matters. The committee already has the power to scrutinise and question the annual reports and accounts that are laid by the SPA, and it has the option to seek further details from Police Scotland on training and the costs of railway policing at any time.

The Scottish Government strongly opposes these amendments, which would impinge on the role of the chief constable in determining the training that is required to support operational policing. I therefore ask Douglas Ross and Margaret Mitchell not to press their amendments. If the amendments are pressed, I ask the committee to reject them.

12:30  

I thank all members for their contributions from different sides of the debate on these amendments. Stewart Stevenson went to great lengths to describe the potential effects of my amendments and, indeed, the convener’s amendments. I now feel that I should belatedly declare an interest because, based on what Stewart Stevenson said, my wife, as a police sergeant, may not be able to cycle into Elgin train station or get on to a train at Elgin to go anywhere else.

I accept that there has been some criticism of the reference to “entering a railway property” but I do not believe that that should take away from the general emphasis that we are trying to include with the amendments, which is that the bill must contain more detail and require more scrutiny on training.

If I decide to press my amendments and they are agreed to, I give a full assurance that, at stage 3, I would like to redefine the element of “railway property” to ensure that we do not end up with what would be the rather ludicrous situation in which my wife and 17,233 other officers could not board a train anywhere in Scotland.

I also noted Mr Stevenson’s question about who should determine the training requirements. He does not want that to be done by politicians, but I think that it is important that, as politicians and as members of the committee, we voice opinions and views that were shared by British Transport Police officers, the British Transport Police Authority, rail users, unions and rail operators, all of whom had significant concerns about a lack of detail on training in the bill and the response from the Scottish Government. We can give voice to those concerns.

What Douglas Ross is saying is reasonably constructive in the context of the debate that we have had. I will not step back from being interested in training; like all members, I will continue to be interested in training. I think that the sole area of difference relates to who should be responsible for setting the training—that is the top, bottom and middle of it. However, we can make common cause by continuing to take an interest in training and by holding the chief constable and the minister to account for the adequacy of any training.

I appreciate Stewart Stevenson’s remarks.

I will briefly comment on some of the other contributions. Liam McArthur was right to mention that, when we scrutinised the bill at stage 1, training was a central concern for the committee and for our witnesses. Mary Fee was correct to highlight the unions’ concerns—indeed, Michael Hogg said that some of them would be prepared to take industrial action. We need much more detail, not just for the safety of our officers, which is paramount, but for the safety of all rail users.

I was pleased to get the support of Mr Stevenson for amendment 5 and disappointed that, for some reason, the minister was not quite so supportive.

I began by quoting the RMT, the BTP and rail operators. I think that it would be correct to finish with a quotation from the Scottish Police Federation. Calum Steele told the committee:

“I do not consider it feasible—I find it incomprehensible—that the service, be it the BTP in its current state, a hybrid or a transport service within the Police Service of Scotland, would put a police officer out to work on a railway line without their having the appropriate track safety requirements. The old adage ‘If you think health and safety is expensive, try an accident’ would come bearing down on them at a hell of a rate of knots—and I would be at the front of the queue knocking lumps out of them for even suggesting it should be done that way.”—[Official Report, Justice Committee, 14 March 2017; c 42.]

Will the member take a further intervention?

No—I want to finish.

It is just a tiny point.

I would hope that, in considering all the responses that the committee has received, and indeed that final quotation from the SPF, we would treat training as an imperative part of the bill, as Stewart Stevenson said.

I press amendment 4.

The question is, that amendment 4 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fee, Mary (West Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Ross, Douglas (Highlands and Islands) (Con)

Against

Adam, George (Paisley) (SNP)
Evans, Mairi (Angus North and Mearns) (SNP)
Finnie, John (Highlands and Islands) (Green)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 4 disagreed to.

Amendment 5 moved—[Douglas Ross].

The question is, that amendment 5 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fee, Mary (West Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Ross, Douglas (Highlands and Islands) (Con)

Against

Adam, George (Paisley) (SNP)
Evans, Mairi (Angus North and Mearns) (SNP)
Finnie, John (Highlands and Islands) (Green)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 5 disagreed to.

Section 3—Power of entry in respect of railway property

Amendment 6 moved—[Margaret Mitchell].

The question is, that amendment 6 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fee, Mary (West Scotland) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Ross, Douglas (Highlands and Islands) (Con)

Against

Adam, George (Paisley) (SNP)
Evans, Mairi (Angus North and Mearns) (SNP)
Finnie, John (Highlands and Islands) (Green)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

The result of the division is: For 4, Against 7, Abstentions 0.

Amendment 6 disagreed to.

Amendments 7 and 8 not moved.

Section 3 agreed to.

Section 4 agreed to.

Section 5—British Transport Police Force functions

Amendment 9 not moved.

Section 5 agreed to.

After section 5

Amendment 2, in the name of John Finnie, is in a group on its own.

The purpose of the amendment is to put on a statutory footing the assurances that were offered verbally by Assistant Chief Constable Higgins that any BTP officer who transferred into Police Scotland would continue to work on railway policing duties unless they agreed to move. It does that by providing a protection to officers that is modelled on the Police and Fire Reform (Scotland) Act 2012 protection for officers who transferred from the territorial forces into Police Scotland and, indeed, legislation that applied long before that with all previous amalgamations.

The previous arrangements set out that an officer must not be assigned to duties that would require them to move away from the geographical area of their former force unless they consent to do that. The restriction in the amendment relates to railway policing rather than geographic location. That would facilitate officers who serve within the BTP at the moment moving from one area to another but remaining within railway policing. That would provide a greater level of assurance to officers who wish to continue their careers in railway policing and place Police Scotland’s statement of intent on a statutory footing.

I move amendment 2.

I thank John Finnie for lodging amendment 2. Given the debate that we had on an earlier grouping, I am minded to recall the minister’s statement that the Parliament and the Government should not seek to intervene in the chief constable’s discretion or decision making. John Finnie has set out a fairly reasonable argument for how that discretion and decision making should, to some extent, be circumscribed. For the reasons that he sets out, the amendment reflects the concerns that we heard during stage 1. It is a pragmatic and proportionate way of addressing them and, therefore, I support it.

I want to raise a wee technical point about the drafting of John Finnie’s proposed new subsection (3); I suspect that it will be for the minister to comment on it.

I want to be absolutely clear that a constable of the British Transport Police who is engaged in duties outwith that police service would be treated as being a constable of the Police Service of Scotland operating on service outside the BTP at the point of transfer. It would be useful to get that on the record to ensure that there is no ambiguity. I agonised over that point and concluded that it was okay, but I seek clarification. John Finnie may want to respond first.

The intention is not to disadvantage anyone. Officers are afforded protection—section 19 of the Police and Fire Reform (Scotland) Act 2012 is well known to afford that protection—albeit that they may temporarily be seconded elsewhere.

I absolutely support what is proposed. I am simply making a tiny, narrow, technical point to ensure that the intention is on the record. As I said, it is probably for the minister to answer my question.

I am happy to support the amendment. As John Finnie and Liam McArthur said, it will provide assurance in response to the concerns that we heard in evidence from those BTP staff who will transfer over. The amendment would clearly set out in legislation a firm indication of intent that officers will be allowed to stay in the BTP if they so wish. That is a sensible way forward.

The amendment is a very constructive contribution, and I thank John Finnie for lodging it.

ACC Higgins of Police Scotland gave the committee assurances that Police Scotland will respect the right of any member of the BTP who transfers to police the railway environment for the remainder of their career and that they will not be moved elsewhere unless they volunteer to do so. In response to concerns that railway police officers could be diverted to other duties following integration, ACC Higgins gave a clear assurance that they would not be diverted, with the obvious exception of a crisis situation.

I am conscious that those assurances have not yet persuaded all those who have concerns on either front. In the stage 1 debate, some members queried whether BTP officers would be deployed to non-railway duties. John Finnie’s amendment clearly sets out the position beyond any doubt and provides a statutory guarantee that any constable who transfers from the BTP to Police Scotland will be able to continue their career in railway policing if they wish to do so.

Will the minister take an intervention on that point?

Yes.

As I said earlier, I fully support what the minister has described as a constructive approach to an issue that was raised with the committee. The minister has—fairly, I think—quoted ACC Higgins, who offered similar assurances in response to the concerns that BTP officers expressed. Nonetheless, those assurances could be seen as enabling the Parliament and the Government to establish criteria for the operational freedom and decisions that are taken by the chief constable and senior officers in Police Scotland. How is that different from the concerns that Douglas Ross raised in relation to his amendments on training provision?

It is different in a couple of ways. If Liam McArthur does not mind, I will quote directly from the remarks that he made a moment ago. He said that the amendment strikes the right balance in being both “pragmatic and proportionate”, and I agree with him on that.

The most important part of John Finnie’s amendment is the proposed new subsection (2)(b), which states:

“A constable to whom this subsection applies ...

(b) must not be assigned duties that do not so relate unless it is necessary to meet a special demand on resources for policing.”

That brings me back to my point about a crisis situation. The provision allows the chief constable flexibility while, as Liam McArthur said, striking the right balance in being both “pragmatic and proportionate”. The amendment gives statutory force to the guarantee that officers who transfer will not be diverted to other duties while ensuring that flexibility exists for the chief constable.

On Stewart Stevenson’s point, I concur with John Finnie’s response that the intention is to ensure appropriate protection for anyone who is on secondment at the time of transfer. It is helpful to put that on the record.

I strongly welcome the amendment. I am grateful to John Finnie for seeking to provide a greater level of reassurance to BTP officers who transfer to Police Scotland that they will have every opportunity to continue their career within railway policing. In turn, I believe that the amendment will help to secure the objective of ensuring that the expertise of BTP officers is retained within railway policing on integration with Police Scotland.

The Scottish Government supports the amendment and I ask the committee to support it, too.

12:45  

I am grateful to those members who have spoken in the debate. The important thing is that the bill is entirely consistent with previous legislation relating to the amalgamations that took place in 1975. I also mentioned the Police and Fire Reform (Scotland) Act 2012. The position is consistent across the various decades.

I press amendment 2.

Amendment 2 agreed to.

Section 6 agreed to.

Section 7—Commencement

Amendment 10, in the name of Liam McArthur, is grouped with amendments 11 to 13.

As with the earlier grouping, the amendments to section 7 reflect concerns that I set out during the stage 1 debate. Throughout the evidence that we heard earlier in the year, we heard concerns about the impact that the bill is likely to have on BTP officers and staff, on the availability of specialist expertise around the policing of our railways and even on the ability of the railway operators to provide a safe and efficient service to the travelling public.

However, we also heard concerns about the ability of Police Scotland to accommodate yet more structural change at this time. It is an organisation that has not had its problems to seek over recent years. Audit Scotland has highlighted serious shortcomings in financial management in Police Scotland, and many of the savings and efficiencies that were promised by ministers at the time of centralisation have not materialised. Even if the policing 2026 strategy finally enables Police Scotland to emerge from a period that has taken its toll on the morale of officers and staff, I ask why we are adding to the challenges that they are being asked to contend with by layering on further structural upheaval.

If the Government is intent on pressing ahead and it secures the backing of Parliament to do so, I believe that there is a strong case for delaying the implementation of the bill’s provisions. My amendment 10 proposes a delay of 10 years, which would safeguard the interests of BTP employees and allow more time for changes to be made that would enable the transfer in due course to be managed smoothly and with less disruption.

I accept that 10 years is an arbitrary figure and I am open to suggestions about what might constitute a more appropriate timeframe for implementation, but I firmly believe that it is in the interests of policing in Scotland, both on our railways and more widely, for ministers to row back from the headlong rush to dismantle the BTP. More time would at least allow the ground to be better prepared, even if the direction of travel remains the same.

I move amendment 10.

I call Douglas Ross to speak to amendment 12 and to other amendments in the group.

I have mentioned some of these points already. I go back to the quote that Stewart Stevenson mentioned earlier: training is important to the committee. It is also important for the bill process that we get up front information on the costs of training, that that is laid before the Parliament, and that it shows that all constables and police cadets have received the necessary training to police the railways and railway property. That may be different now that my earlier amendment failed, but it is still important that we get information on the training of police officers and cadets and on where the funding for that will come from.

Liam McArthur talked about a headlong rush. I am not sure that I recognise that in the context of the date of 1 April 2027. In broad terms, if one is going to set a date that far in the future it might be more appropriate to say something like “no sooner than”, but that is a minor and picky point.

The real point comes in amendment 11, which gets it fundamentally and absolutely wrong. The future of the bill lies on only two hands. The responsibility for what we are doing must lie, first, with the chief constable, who has to be sure and give us confidence that he is prepared to pick up the responsibilities that the bill, if it is passed by the Parliament, will give him. Secondly, it is for us to take responsibility for how we vote at stage 3, at the end of the bill’s parliamentary process. Amendment 11 contains a long list of bodies and people who would have no responsibility for the consequences of any decisions that they might choose to make. It would be entirely inappropriate to hand a veto over the policing of railways to people who have no responsibility for carrying it forward. On that basis, I cannot support amendment 11.

My real problem with Douglas Ross’s amendment 12 is simply the use of the word “all” in proposed new section 7(2B)(a), which uses the wording

“all constables and police cadets”.

This comes back to a point that I have made before. The training of constables and indeed police cadets is a matter for the chief constable, who must ensure that the training that all constables and police cadets receive is consistent with the duties to which they will be assigned. The reason why I cannot support amendment 12 is as simple as that.

I shall not support the amendments in this group either. I point out that an important category is missing from proposed new section 7(2B)(a), namely, that of police support staff who play the valuable role of scene of crime examiner, so there is a deficiency in amendment 12 anyway.

I call on the minister to respond.

The committee has been asked to consider a complex set of competing amendments. I am grateful to Liam McArthur for his explanation of what he is looking to achieve with his amendments. However, the Scottish Government is unable to support the amendments in the group. In my remarks, I will concentrate on Liam McArthur’s amendment 11 and Douglas Ross’s amendment 12 as they raise the most important points, although I will also say something about timescales in response to Liam McArthur’s amendment 10.

I have welcomed the Justice Committee’s stage 1 report on the bill. It makes a number of constructive suggestions and we have responded positively to those. The committee has also heard from many members of the joint programme board—the BTP, the BTP Authority, Police Scotland, the SPA and the UK Government’s Department for Transport—about the detailed programme of implementation that is already under way and is being delivered through effective partnership working. The passage of the bill will enable that work to move on to vital areas such as secondary legislation in order to deliver on our commitment to BTP officers and staff on their jobs, pay and pensions. It will also encompass detailed work on operational integration, led jointly by Police Scotland and the BTP, including the arrangements for training, which Douglas Ross focuses on in his amendment.

The committee has, rightly, shown great interest in the work of the joint programme board and a desire to scrutinise the wide range of preparations over the coming period, ahead of the integration of the BTP in Scotland into Police Scotland by the target date of 1 April 2019. The committee has asked for six-monthly progress reports on the joint programme board’s work. As I have said, I am happy to accept that recommendation and will ensure that the Scottish Government provides those reports on behalf of the board. They will enable the committee to assess progress across the full range of the board’s work and to consider evidence of how the recommendations are being followed through, including the recommendation that the board should broaden its engagement to include the railway industry and other key interests during the work that is ahead of it.

Liam McArthur’s amendment 11 and Douglas Ross’s amendment 12 go further than what is envisaged in the committee’s stage 1 report and seek to include a statutory requirement for other reports in addition to that. In the case of Douglas Ross’s amendment 12, that would focus primarily on training. Progress reports from the joint programme board will, of course, provide the committee with much more than that.

The board’s progress reports will also provide regular updates on readiness for integration. Liam McArthur’s amendment 11 would create an additional hurdle whereby, as Stewart Stevenson said, a large number of different bodies would all have, in effect, a right of veto before integration could proceed. Liam McArthur will not be surprised to hear that I cannot support that proposal. Although the Scottish Government will engage closely with a range of interests in considering the timing of commencement, we believe that the Government must retain the responsibility for that decision. In taking that responsibility, the Government will, of course, be accountable to Parliament for the decisions that we make.

Liam McArthur will also be unsurprised to hear that I am unable to support his amendment to delay commencement of the provisions of the bill until 2027, because it would mean that we would have very limited say about how railway policing in Scotland would be delivered in the meantime.

Of course, we know that if the Conservatives are returned to power in Westminster, railway policing would no longer be delivered by the BTP as it currently exists. The amendment would mean that we would lose out on the benefits of integrated policing across Scotland’s transport infrastructure for the lifetime of two parliamentary sessions.

I ask Liam McArthur and Douglas Ross not to press their amendments; if they press them, I ask the committee to reject them.

I will start with an apology to Douglas Ross for not acknowledging his amendment 12 in my earlier remarks. As with his earlier amendments, I support its emphasis on the importance of training.

In relation to Stewart Stevenson’s comments—I thank him again for those—when I referred to a “headlong rush”, I was not of course levelling a criticism at myself. As he rightly says, in putting the date back to 1 April 2027, I could not be accused of anything like a headlong rush.

I think that it is fair to say that the Smith commission recommendations came somewhat out of left field for the BTP, and the distance that we have travelled between that report and this bill being introduced is no great distance at all. Therefore, I think that as far as many in the BTP are concerned, there has been a headlong rush, particularly given the absence of other options being consulted upon. However, I take Stewart Stevenson’s point that “no sooner than” would perhaps have been more felicitous language. I will certainly bear that in mind.

I thank John Finnie for his comments, although I think that they were directed more at Douglas Ross’s amendment than at mine. I acknowledge that he does not support my amendments. I also acknowledge, belatedly, Rona Mackay, who let the cat out of the bag about her views on my amendments in this group in responding to the earlier group, but I thank her for her comments.

The minister is right to point to the partnership working. We had a good evidence session with a representative of the JPB and I think that he very much reinforced what the minister has said.

The proposal to merge the BTP with Police Scotland was not at the request of Police Scotland. Had we offered Police Scotland more time, I am not entirely sure that it would have cast that back up in our faces, given the challenges that it has to take on board. To give credit to Police Scotland, it tried to offer the committee reassurances where it could. Nevertheless, I think that the structural upheaval that this will involve, over and above the challenges that Police Scotland already has on its plate, should not be underestimated.

A lot of the evidence that we heard around the concerns that BTP officers and staff have about the maintenance of their terms and conditions will make it very difficult to provide reassurance on that side while at the same time going through a difficult process with Police Scotland officers and staff in the context of the policing 2026 strategy, in that the more that is given in one area, the more difficult it will be to provide reassurance in the other.

I am grateful to the member for giving way. Does the member accept that ACC Higgins described the BTP timeframe as a “luxury” compared with the amalgamation into a single force?

I am grateful for John Finnie’s comment, although I think that ACC Higgins’s reference to the timeframe being a “luxury” only serves to underscore the other difficulties that ACC Higgins and his colleagues are trying to grapple with. I would not necessarily suggest that, by any stretch of the imagination, it reflected enthusiasm on his part that the workload that they are trying to deal with in relation to this structural change is particularly welcome.

On that basis, I press amendment 10.

The question is, that amendment 10 be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Fee, Mary (West Scotland) (Lab)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Ross, Douglas (Highlands and Islands) (Con)

Against

Adam, George (Paisley) (SNP)
Evans, Mairi (Angus North and Mearns) (SNP)
Finnie, John (Highlands and Islands) (Green)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 10 disagreed to.

Amendments 11 to 13 not moved.

Section 7 agreed to.

Section 8 agreed to.

Long Title

Amendment 14 not moved.

Long title agreed to.

That ends stage 2 consideration of the bill. I thank the minister and his officials for attending. We were trying to get through all the amendments today, rather than having to call him back to the committee.