|Railways And Transport Safety Bill - continued||House of Lords|
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Commentary on Clauses
56. This Part of the Bill extends to England, Scotland and Wales. The BTP does not operate in Northern Ireland. It provides for the creation of an independent police authority ("the Authority") for the British Transport Police. The Authority is to be modelled on existing Home Office police authorities (such as Northamptonshire Police Authority and Gwent Police Authority) with the clauses in this part of the Bill largely mirroring the Police Act 1996 provisions on Home Office police authorities. Where the clauses do not mirror the Police Act 1996 provisions in every respect, this is generally only so as to meet the specific circumstances of the BTP as a national police force for the railways, as opposed to a county or metropolitan force.
57. The following table details the clauses that are based on provisions in the Police Act 1996.
Clause 18: The British Transport Police Authority
58. Clause 18 gives effect to Schedule 4. This Schedule gives details of membership and proceedings for the BTP Authority, as well as details about financial and pension arrangements for the Authority.
Clauses 21-26: Senior officers and constables of the BTP
59. Clauses 21 (Chief Constable), 22 (Deputy Chief Constable), 23 (Assistant Chief Constables), 24 (constables), 25 (special constables) and 26 (cadets) make provision so that the BTP will have the same ranks as Home Office police forces under the Police Act 1996. These clauses also provide that these officers' functions, appointments and other associated matters are to be based on the provisions of the Police Act 1996.
60. Only where it is necessary to meet the specific needs of the BTP, do the provisions in the Bill differ from the Police Act 1996. Provision made by regulations under the Bill will have to follow regulations made under the Police Act 1996, and can only make different provision to meet the specific circumstances of the BTP. This means that should the Secretary of State make regulations regarding the suspension and removal of the senior officers of the BTP, then such regulations would seek to replicate the existing provisions in the Police Act 1996, and any regulations made under that Act, only differing to take account of any specific needs of the BTP.
61. Clauses 24 and 25 specify that a BTP constable or special constable need only be appointed in England and Wales or Scotland to be considered a constable throughout Great Britain.
62. Clause 25(6) covers liability for the wrongful acts of BTP special constables when on BTP business. Special constables, unlike constables, are not employees of the Authority, and liability does not fall on the BTP Authority via their employer's contractual responsibility. The clause provides that liability for any wrongful acts committed by BTP special constables in the course of their duties rests with the Chief Constable. The clause also allows the Chief Constable to pay out of the BTP Police Fund any damages or costs arising from this conduct.
Clause 28: Terms of employment
63. Clause 28 is designed to ensure that the BTP Authority's employment practices fall within the criteria set by the Secretary of State. The BTP's constables will hold the office of constable and also be employees of the Authority. In transferring their employment from the SRA to the Authority their existing terms and conditions of employment will be protected. Thus far the Secretary of State has retained an overarching control on BTP constables' pay through the SRA's financial framework. This clause will enable the Secretary of State to ensure that the Authority maintains pay parity for BTP constables with their Home Office colleagues.
Clause 30: Jurisdiction
64. The BTP's main duties consist of public policing, exactly like a Home Office police force. However, unlike a Home Office force, almost all of the BTP's duties, and in particular its patrols, occur on private property, albeit private property to which the public may have access i.e. railway stations and trains. The BTP's existing jurisdiction on this private property flows from a combination of a 1949 private Act of Parliament 2 and numerous private agreements between the SRA and the railway companies. Most operators of railway vehicles and certain railway assets are required under the licensing regime in the Railways Act 1993 to have a licence. It is a condition of those licences that the operator must enter in to an agreement with the SRA to engage the services of the BTP on its property. It is these agreements, combined with the 1949 Act that gives the BTP the right to police most railway property as of right.
2 Section 53 of The British Transport Commission Act 1949
65. Clause 30 gives the BTP a wholly statutory railway jurisdiction throughout England, Scotland and Wales. Within this jurisdiction a BTP constable has the powers and privileges of a Home Office constable. The jurisdiction extends over all railway property. It also extends outside railway property (a town high street for example) throughout Great Britain in relation to railway matters. This jurisdiction would, for example, allow a BTP constable to pursue a person who commits an offence on the railways but then absconds from railway property.
66. In order to allow the BTP to police railway property on a day-to-day basis, clause 30(2) & (3) gives the BTP constable a statutory right to enter and police certain defined areas of railway property.
67. On property not listed in clause 30(3), the BTP constable is subject to the same restrictions that apply to a Home Office constable. In particular, an officer would be unable to enter private property unless invited, holding a warrant, or exercising some other right of entry (in another act of Parliament for example).
Clause 31: Prosecution
68. Although normally prosecutions in serious cases will continue to be referred to the Crown Prosecution Service the BTP does prosecute minor offences particularly those under the various railways bye-laws and it is expected that BTP officers will continue to do so.Clauses 32-34: Police Services Agreements
69. The BTP will continue to be funded by the railway industry. Certain operators will be required to engage the police services of the BTP, other operators will have the choice. Clause 32 provides for a system of Police Services Agreements, that will act as the means by which the financial arrangements between the Authority and railway operators are calculated and set out. Clause 33 gives the Secretary of State power to make orders requiring certain railway operators to enter into a Police Services Agreement. Where an operator is required to enter into such an agreement fails to do so, it will commit an offence if it then provides railway services, as defined in clause 74(2).
70. Clause 34 makes provision on disputes relating to police services agreements. Similar provision is currently contained in paragraph 6(b) of the British Transport Police Force Scheme 1963 3, and associated non-statutory rules. Disputes will be determined by the Secretary of State, with clause 34(8) providing a means of appeal to the High Court from the Secretary of State's determination on a point of law.
3 As set out in the Schedule to The British Transport Police Force Scheme 1963 (Amendment) Order 1994 (S.I. 1994/609)
Clause 35-44: Police Regulations
71. The Home Secretary has powers under the Police Act 1996 to make regulations regarding the government, administration and conditions of service in Home Office police forces.
72. These regulations do not apply to the BTP. Instead the Strategic Rail Authority, as employer of the force, applies similar provision to BTP constables through other means, notably BTP constables conditions of employment and Force General Orders. Clauses 35 (Police regulations: General), 36 (Police regulations: special constables), 37 (Police regulations: cadets) and 38 (British Transport Police Federation) enable the Authority to make non-statutory regulations that are consistent with Home Office regulations. Such regulations may only differ from the regulations made under the Police Act 1996 to meet the specific needs of the BTP.
73. Clause 39 provides that the Authority can only make such non-statutory regulations if the Chief Constable and the staff associations have approved the draft. Any such non-statutory regulations would also need the prior approval of the Secretary of State. This will ensure that such non-statutory regulations proposed by the Authority do not differ unduly from regulations made under the Police Act 1996. If the Authority is unable to reach agreement with the Chief Constable and the staff associations then the Secretary of State may direct the Authority to prepare draft regulations under clause 40. In these circumstances clause 39(3) enables the Secretary of State to permit the Authority to dispense with obtaining the prior approval of the Chief Constable and staff associations.
74. Clause 41 enables the Secretary of State to make statutory regulations in relation to the BTP. This power would be used sparingly in circumstances such as where the Authority is unable to make regulations itself. These regulations would override any incompatible provisions of non-statutory regulations made by the Authority. The Secretary of State would be required to consult the Authority, the Chief Constable and BTP staff associations before making such regulations. In particular the Secretary of State would have power to make regulations in relation to disciplinary procedures (clause 42), equipment (clause 43) and procedure and practice of the BTP (clause 44). Clauses 43 and 44 extend powers in the Police Act 1996.
75. Regulations on procedure and police equipment will extend to Scotland, even though the Police Act 1996 covers only England and Wales. This is to ensure that BTP equipment and procedures are harmonised across all the BTP's areas of operation.
Clause 45: Conditions of service: Transport Police Conference
Clause 45 specifies that where either the Secretary of State or the Authority are making regulations or taking a decision about the conditions of service of BTP constables, they must first refer the issue to the BTP "Conference". This is a forum consisting of an equal number of individuals nominated by the BTP Federation and the Authority to consider such issues and make recommendations that the Secretary of State or the Authority shall have regard to. An independent arbitrator can be appointed by either the Conference or the Secretary of State to make the recommendation on behalf of Conference if it is unable to agree.
Clauses 49-54: Planning
76. Clauses 49 (Policing objectives: Authority), 50 (Policing objectives: Secretary of State), 51 (Railways policing plan), and 52 (Performance targets), are based on provisions of the Police Act 1996. Clauses 54 (Three-year strategy plan) and 46 (Code of practice: Authority) apply provisions of the Police Act 1996 to the Authority. Only where necessary to meet the specific needs of the Authority and the BTP do these provisions differ from the Police Act 1996. This is to ensure that the Authority operates in the same framework of governance as Home Office police authorities.
77. Unlike 1996 Police Act police authorities, the BTP and its Committee are not subject to the Local Government Act 1999 "best value duty" - although on a day-to-day basis, they act as if they were. Clause 53 gives the Secretary of State the power to direct the Authority to apply any requirement that he could make in respect of a "best value authority" under the 1999 Act.
Clauses 55-59: Information etc
78. Clauses 55 (Reports by Chief Constable), 56 (Annual report by Authority), 57 (Other reports to Secretary of State), 58 (Statistics) and 59 (Inquiry) are based on provisions of the Police Act 1996 and Police Act 1997 regarding information that the Authority and Chief Constable are to provide to the Secretary of State, and in certain instances lay before both Houses of Parliament or publish. Only where necessary to meet the specific needs of the Authority and the BTP have the corresponding provisions in the Police Act 1996 and Police Act 1997 not been followed.
Clause 62-66: Inspection
79. Her Majesty's Inspectorate of Constabulary (HMIC) inspects and reports to the Secretary of State on the efficiency and effectiveness of all Home Office police forces under provisions in the Police Act 1996. These provisions also allow the Secretary of State to give certain directions to a Police Authority where HMIC consider that the whole or any part of the relevant police force is not efficient or effective, or will cease to be so unless remedial measures are taken. The BTP have not fallen under the statutory remit of HMIC in the past, but the BTP Committee has invited HMIC to undertake detailed assessments of the operational performance and organisation of the BTP every three years applying the same standards as for Home Office police forces.
80. Clause 62 (Inspection) places a statutory duty on HMIC to inspect the BTP and report to the Secretary of State regularly and also at the request of the Secretary of State. Clauses 63 (Action after an adverse inspection report), 64 (Remedial direction), 65 (Action Plan) and 66 (Senior appointment: delegation of function) provide the Secretary of State with powers of direction following an adverse HMIC report. The clauses, modelled on similar provisions in the Police Act 1996, enable the Secretary of State to direct the Authority to take specified actions or ask it to produce an action plan to remedy any Force deficiencies. The same procedures, including consulting with the Authority and Chief Constable, will apply to the Secretary of State regarding the BTP in the same way as they apply to Home Office police forces.
81. The main difference between the BTP and Home Office police forces will be that the Authority will continue to meet the full costs of HMIC inspections of the BTP. This is in line with other non-Home Office police forces such as the Ministry of Defence Police Force, the UK Atomic Energy Authority Constabulary and the Isle of Man Police Force whereas inspections of Home Office police forces are funded centrally.
82. The HMIC in England and Wales will continue to be responsible for inspections of the BTP as a whole. Within Scotland, HMIC (Scotland) will be given a statutory duty to inspect the BTP and report to the Secretary of State in so far as the BTP operates in Scotland.
Clause 72: transitional and incidental provision
83. Clause 72 contains powers to make transitional provision including to a relevant pension scheme to ensure continuity following the establishment of the Authority, whilst recognising the direct relationship between the new Authority and the Secretary of State. For example, subsection (3)(g) would enable modifications to be made to the procedural or structural arrangements of staff pension schemes (excluding benefit/contribution/funding structures) as a consequence of the new relationship. Subsection (3)(f) would enable existing enactments about pension schemes to have immediate effect, e.g. to apply the provisions of Section 16 of the 1995 Pensions Act covering pension members' rights to select trustees.
Public sector financial and manpower cost
84. The measures relating to the British Transport Police will not require additional direct public expenditure, since the BTP will continue to be funded by the railway industry. The additional administrative cost of a police authority of 13 members over the cost of the current Committee of 9 is estimated at £50,000 per annum. This compares to the BTP's total annual budget of £130 million.
Human Rights assessment
85. The BTP provisions of this Bill are considered to be compatible with the Convention. Although BTP constables will be given the right to enter railway property such as railways stations and rail vehicles, which engages the Article 8 right to a private life and the Article 1 of the First Protocol right to the peaceful enjoyment of possessions, it is considered that any such interference is justified. First the exercise of this power is limited to defined pieces of railways property. Second the power is available to the BTP constable so he may ensure public safety, and prevent crime and disorder.
86. Certain persons, such as train companies, will be required by order made under provisions in this Bill to enter into police services agreements with the new BTP Authority, and under which agreements payment must be made to the BTP Authority. This engages Article 1 of the First Protocol, which protects the economic interests of a person running a business. It is considered that any interference this obligation causes with this right can be justified on the basis that it is in the general interest that the railways are policed, and that if the BTP Authority were not funded it could not make provision for a police force for the railways.
Part 4 - Shipping: Alcohol and Drugs
87. This Part extends to any professional and (subject to any exceptions made by regulations) to any non-professional mariner sailing in United Kingdom waters, as well as to mariners in United Kingdom-registered ships elsewhere.
88. There is at present no specific legislation to regulate alcohol consumption in the maritime industry apart from a general provision in section 58 of the Merchant Shipping Act 1995. This makes it an offence for the master or a seaman employed in a UK-registered ship, or in a foreign ship in a UK port or in UK waters on its way to or from a UK port, to endanger his ship or other ships by reason of being under the influence of drink (or drugs). There is no maximum blood/alcohol limit specified.
89. Following the Marine Accident Investigation Branch's (MAIB) inquiry into the Marchioness disaster in 1989, the then Government asked John Hayes to conduct a wider inquiry into river safety. The Hayes Report, published in 1992, made 22 recommendations. Recommendation 18 says:
"The Department [of Transport], after appropriate consultation, should promote legislation to introduce a breath test similar to that applying to motor vehicle drivers which would apply to the skippers and crew of all vessels."
90. On 18th August 1999, the Deputy Prime Minister announced an inquiry to review all the arrangements to ensure safety on the Thames. Amongst other things, the inquiry chairman, Lord Justice Clarke, recommended that:
"Alcohol legislation for vessels should be in the form of primary legislation and an offence
similar to that of being in charge of a vehicle while under the influence of drugs should also be introduced for vessels.
Subject to consultation:
Alcohol legislation should extend to all persons on duty whose duties extend to the navigation of the ship, the operation of her engines or navigational equipment and any member of the crew (including bar and catering staff) who might be called on to assist in the event of an emergency.
It should extend to private pleasure craft.
It should apply to all vessels in UK waters, irrespective of flag.
Breath testing should be carried out after an accident or if there is reason to suspect a breach of the law but there should not be random testing."
91. On 23rd March 2001, Lord Justice Clarke published his report of the Formal Investigation into the collision between the Marchioness and the Bowbelle. His first recommendation was to refer to proposals put forward by the Department that reflected the position set out in paragraph 89:
"We endorse the proposed legislation and recommend that it be enacted as soon as possible."
92. The Government accepted this recommendation.
|© Parliamentary copyright 2003||Prepared: 2 April 2003|