Let us be clear: Clause 37 provides a mechanism for enabling the transfer of functions of reserved tribunals to the Scottish tribunal system. The clause recognises the implications not only of paragraph 63 of the Smith commission agreement, but of paragraph 64, which recommended that the law providing for the underlying reserved substantive rights and duties governing the matters heard by these tribunals would continue to be reserved. Therefore, Clause 37 provides that these functions should be transferred by means of an Order in Council. That provides a degree of flexibility that would not otherwise be available. As the noble and learned Lord, Lord Wallace, observed, it is not really practicable to contemplate the transfer in one unit, as it were, of all these functions. The Order in Council will provide for the transfer of those functions, subject to conditions, that may be necessary to ensure the continuing effect of delivery of overarching national policy, and the underlying rights and duties that arise in areas of the law that continue to be reserved.

Amendments 52F and 52G are concerned with the transfer in respect of the employment tribunals and employment appeal tribunals. It is considered appropriate

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that this should proceed by way of Order in Council. Indeed, a draft Order in Council has been made available for consideration regarding this matter.

Let me assure the Committee of two things. First, any conditions or restrictions included in an Order in Council must be approved by both this Parliament and the Scottish Parliament before such an Order in Council can be made. Therefore, there will be scrutiny of any conditions attaching to such a transfer in both Parliaments. That is a consequence of the amendment proposed by Clause 37(2), which means that the form of Order in Council will be subject to the approval specified as “Type A” in Schedule 5 to Part III of the 1998 Act. Secondly, the Government do not agree that the terms of transfer of all reserved tribunal functions should be completely unqualified. There are circumstances in which it will be appropriate to ensure that functions can be undertaken in a way that maintains some continuing effective delivery of reserved legal matters—that is, of overarching national policy.

In these circumstances, it is proposed that an Order in Council in respect of employment tribunals will allow for consideration by the Scottish Government of the matter of fees in respect of those tribunals. That is not to say that in every instance where there is a transfer by means of Order in Council the matter of fees will not be addressed, but in the case of employment tribunals and employment appeal tribunals, I can say to your Lordships that the matter of fees will be for the Scottish Government and will not be reserved in any respect.

Reciprocity between the tribunals is a matter that will be worked out in the context of each Order in Council, and will certainly be the subject of discussion with the Scottish Government so far as any transfer is concerned.I am not aware at present of there being any specific statutory provision for such reciprocity to take place. I am aware that, as a matter of practice, tribunal judges, who are tribunal judges within the UK tribunal system, sit in both Scotland and England. There may be distinct benefits in attempting to ensure that that continues.

5.30 pm

The matter of Scottish cases is to be addressed by Order in Council. At present it is contemplated that steps will have to be taken to ensure that forum shopping does not occur on the part of persons seeking recourse to tribunals within the United Kingdom. For example, in the matter of employment tribunals, it is contemplated that jurisdiction in respect of the Scottish tribunals will be determined by reference to place of business, place of residence, the place where a person is normally employed and the place where the incident or incidents in question took place. But, again, because of the flexibility allowed for by a proceeding in the form of an Order of Council, that can be dealt with on a case by case—or, at least, tribunal by tribunal—basis.

The noble and learned Lord, Lord Wallace of Tankerness, also mentioned the matter of staff, albeit he hesitated to include tribunal judges in that term. Be that as it may, there has been engagement with the tribunal judiciary within Scotland on this matter and there is no intention that members of the United Kingdom judiciary should be obliged to take one step

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towards Scotland, or one step towards the United Kingdom. It will be a matter for them whether they decide to join the new Scottish tribunal or remain within the United Kingdom Tribunals Service.

Going forward, there is the question of access to judicial expertise. That is a further reason why the term “or otherwise” appears in Clause 37, because it may be necessary over and above the issue of practice and procedure to ensure suitable conditions over transfers so that a certain level of judicial expertise can be maintained within tribunals. To take a simple example, it may be a matter of concern that the Scottish Government might want to dispose of expert legally qualified tribunal judges in one area and substitute for them lay members or a lay panel. Therefore, it is important to consider that again on a tribunal by tribunal basis.

I hope that has addressed the questions raised by your Lordships. I note the points that have been raised and will consider them but at this time I invite your Lordships—

Lord Wallace of Tankerness: The noble and learned Lord has not addressed Amendment 52H and what other tribunals it is anticipated may be covered in future.

Lord Keen of Elie: That is, as it were, a known unknown at this stage. There are no particular tribunals in mind so far as that is concerned. However, if further tribunals are created, it is contemplated that they should not transfer automatically but should be subject to the same conditionality that is thought appropriate for existing tribunals. It is at that level of generality. It is not contemplated that there is any particular tribunal that will be addressed by that provision. I hope that answers the noble and learned Lord’s question and invite him to withdraw the amendment.

Lord Mackay of Clashfern (Con): On the point made by the noble and learned Lord, Lord Wallace of Tankerness, about taking cases from England, where the delays in particular situations can cause difficulties, and bringing them to Scotland, the definition of a Scottish tribunal in new sub-paragraph (11)(a) is as one,

“that does not have functions in or as regards any other country or territory, except for purposes ancillary to its functions in or as regards Scotland”.

I wonder whether there is any difficulty in relation to what I would have thought was a good idea—namely, to have the possibility of cases being referred to Scotland where that would help scheduling. However, it would be necessary for the law to be applied if a case was transferred to be the law that would be applied before it was transferred.

Lord Keen of Elie: I am obliged to the noble and learned Lord, Lord Mackay of Clashfern. First of all, of course, we are dealing with reserved matters. If we were dealing with immigration, for example—a matter of reserved law—there could be circumstances in which the application of Scots law led to a different outcome from the application of English law. I notice that new sub-paragraph (11) in Clause 37 talks about the meaning of a Scottish tribunal, but that, on the face of it, does not appear to determine the scope of its jurisdiction to hear cases from outside Scotland. It is more a question of what is a Scottish case in that context. That is

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something that can be looked at, I suggest, in the context of each Order in Council for the transfer of each tribunal. There may be room to facilitate the transfer of cases in the manner suggested. That is something that we will take away and consider.

Lord Wallace of Tankerness: My Lords, I very much thank the noble and learned Lord, Lord Keen, for his response and the noble and learned Lord, Lord Davidson of Glen Clova, for his comments. On the question of fees, which we both raised in relation to employment tribunals, I think we probably believe that we got a satisfactory answer from the Minister. Indeed, I am very grateful to him for the replies that he gave us. In his further elaboration in his response to the noble and learned Lord, Lord Mackay of Clashfern, he indicated that the Government would be looking at—and, I hope, achieve—a situation whereby the Orders in Council will allow for the transfer of cases between jurisdictions to alleviate backlogs. It may well be that it applies the other way, too. Then we might be faced with a situation where a Scottish case could be heard in a jurisdiction furth of Scotland. No doubt, an Order in Council would be sufficiently well crafted to deal with that situation as well. The noble and learned Lord is right: I suspect that at the moment there is no statutory provision to allow reciprocity of the judiciary because, of course, we have a Great Britain tribunal system. Where there is legislation, it relates to Northern Ireland—for example, in relation to social security. I would hope to see the kind of provision that has been made for reciprocity with Northern Ireland apply in any orders that are brought forward with regard to the transfer of tribunals to Scotland.

With regard to the term “or otherwise”, the noble and learned Lord suggested that that related to judicial expertise. I think elsewhere in his response to the noble and learned Lord, Lord Mackay of Clashfern, he accepted and acknowledged that there could be situations where Scots law was different. That is reassuring. While I think it is absolutely right that there should be a common approach—indeed, the Smith commission recognised that when you are dealing with UK statutes, it is desirable that there should be a common approach—nevertheless there will be circumstances where the respective courts take a different view. It would be unfortunate if that were closed down.

I apologise that I had not seen the draft Order in Council before coming into the Chamber. I am not sure that the Law Society of Scotland had seen it either. If the Minister would like to indicate where one might find it, that would be very helpful. If he cannot do so today, he can certainly write to us and that will be satisfactory.

Lord Keen of Elie: I undertake to advise the noble and learned Lord as to where a copy of the draft Order in Council can be obtained.

Lord Wallace of Tankerness: That would be helpful. In these circumstances, I beg leave to withdraw the amendment.

Amendment 52F withdrawn.

Amendments 52G and 52H not moved.

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Clause 37 agreed.

Clauses 38 to 41 agreed.

Amendment 53

Moved by Lord Davidson of Glen Clova

53: After Clause 41, insert the following new Clause—

“Obstructive parking

(1) In Part 2 of Schedule 5 to the Scotland Act 1998, in section E1 (road transport), after “Exceptions”, insert—

“( ) The subject matter of sections 19 to 22 of the Road Traffic Act 1988 (stopping on verges, etc, or in dangerous positions, etc).

( ) The subject matter of section 41(5) of the Road Traffic Act 1988 (regulation of construction, weight, equipment and use of vehicles) in so far as it relates to the making of regulations making it an offence to cause or permit a vehicle to stand on the road so as to cause any unnecessary obstruction of the road.”

(2) After section 51 of the Road Traffic Offenders Act 1988 (fixed penalty offences), insert—

“51A Offences under the Road Traffic Act 1988

(1) Any offence in respect of a vehicle under regulations made by Scottish Ministers under section 41(5) of the Road Traffic Act 1988 (regulation of construction, weight, equipment and use of vehicles) is a fixed penalty offence for the purposes of this Part if it is specified as such in those regulations, but subject to subsection (2).

(2) An offence under an enactment so specified is not a fixed penalty offence for those purposes if it is committed by causing or permitting a vehicle to be used by another person in contravention of any provision made or restriction or prohibition imposed by or under any enactment.

(3) Before proposing a change in regulation of a subject matter falling under this section, Scottish Ministers shall—

(a) consult the Secretary of State, and

(b) publish and lay before the Scottish Parliament an assessment of the impact on road safety of any difference between the proposed change in Scotland and road traffic rules in other parts of the United Kingdom.””

Lord Davidson of Glen Clova: My Lords, I rise to speak to Amendment 53 standing in my name and that of my noble friend Lord McAvoy. At present, the Scottish Parliament has control over much of road safety. Indeed, the Smith commission recommended the following:

“Remaining powers to change speed limits will be devolved to the Scottish Parliament. Powers over all road traffic signs in Scotland will also be devolved”.

Clauses 39 and 40 reflect that recommendation by devolving full powers over the making of road signs and speed limits. However, as third sector organisations and Members in the other place have made clear, the Scottish Parliament does not have legislative competence over pavement parking. Amendment 53 would rectify this anomaly. The intended result is that parking offences such as parking on pavements, or by dropped kerbs, and double parking can be enforced by the Scottish Parliament.

At first blush, this may seem a somewhat picayune topic. However, I am grateful to both Mr Joe Irvin, on behalf of Living Streets Scotland, and the organisation Guide Dogs Scotland for their briefing, which demonstrates that this is a matter of significance. Pavement parking can be dangerous for pedestrians, especially people with sight loss, parents with pushchairs,

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wheelchair users and other disabled people. People with sight loss are particularly affected, as they can be forced into oncoming traffic which they cannot see. A survey by Guide Dogs Scotland showed that 97% of blind or partially sighted people encounter problems with street obstructions, and 90% of those experience trouble with vehicles parked on pavements. Pavements are not designed to take the weight of vehicles, and cars cause paving to crack and the tarmac to subside. This damage makes pavements uneven, creating a trip hazard for pedestrians, particularly the blind and partially sighted.

The cost of repairing pavements is, of course, a burden for local authorities. In London, there has been a general prohibition on pavement parking since 1974. Local authorities are responsible for civil parking enforcement and they have powers to make exceptions on a street-by-street basis. As my honourable friend the Member for Edinburgh South has said:

“Legislation to harmonise the law on pavement parking would mean that there is one law for everyone and would send a clear message that putting pedestrians in danger is not acceptable. Parking on the footway should only be permitted where a local authority determines that it is both necessary and safe to do so”.

I trust that this point, at least, resonates with the Government’s ambition to give local authorities greater autonomy over their own affairs. The amendment would allow parking legislation to proceed in the Scottish Parliament and enable local authorities and police to manage the streets more as communities wish.

Responding to a debate on this issue in the other place last month, the Parliamentary Under-Secretary for Transport stated that,

“it would not be without new cost burdens for local authorities. They would have to remove any existing local prohibitions, taking down signage, and then review every road in their areas to establish where limited footway parking should still be allowed, to avoid congestion, before going through the process of passing resolutions, putting down road markings, and erecting appropriate signage”.—[

Official Report

, Commons, 4/12/15; col. 659.]

However, these concerns do not take into account the savings that would be made in maintenance costs for local authorities which, as we know, have to spend millions of pounds a year on repairing cracked pavements which have been damaged by vehicles.

The amendment would resolve any issue of competency and enable an impact assessment of the changes in comparison with the rest of the UK, which might have an overall benefit for understanding. This is significant, because recent efforts, including two Private Members’ Bills—and an upcoming Department of Transport round table on the issue—have focused wholly on England and Wales. In his response, will the Minister at least give an undertaking that relevant Scottish representatives will be invited to these discussions in future? Both the Scotland Office and the Scottish Government agree to the principle of devolving these powers, subject to agreement. There is agreement from this side of the House. I beg to move.

Lord Steel of Aikwood (LD): I support subsection (3) of the new clause proposed by the amendment moved by the Official Opposition. I hold a number of offices in motoring organisations and I support the thrust of the clauses which the Committee has just passed,

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and the one we are discussing now, which give the Scottish Parliament more jurisdiction over road traffic management in Scotland. However, I hope when that happens they will be sensible and not introduce differences for difference’s sake, remembering that motorists in this country travel frequently across the border from England into Scotland and vice versa. It would create an intolerable situation if they were to go out of their way to make differences for the sake of it. I like subsection (3) because it requires that, before Scottish Ministers make any change in regulation, they should consult the Secretary of State and,

“publish and lay before the Scottish Parliament an assessment of the impact on road safety of any difference between the proposed change in Scotland and road traffic rules in other parts of the United Kingdom”.

That is an important safeguard and I therefore support the amendment.

5.45 pm

Lord Foulkes of Cumnock (Lab): I also support the amendment which was moved so eloquently by my noble and learned friend Lord Davidson of Glen Clova. When the Chair called Lord McAvoy, one or two of us at the back thought that the noble Lord’s diet had suddenly worked remarkably well, but then we realised it was the noble Lord, Lord Davidson of Glen Clova. Some noble Lords may be thinking that I am the last person to make any comments about avoirdupois. There is nodding from the noble Lord, Lord Kerr of Kinlochard.

I cannot think of anyone better to answer this debate on parking than the noble Lord, Lord Dunlop—assuming that he is going to answer it. I hope he might be able to give the Committee an assurance. Responsibility for road signs was devolved to the Scottish Parliament and Government. Over the last few years, we in Scotland have seen cuts in education and further education; we have seen problems in the health service and with cancer treatment; we have seen the failure to implement the promised reduction in class sizes to 18 in Primary 1, 2 and 3. Those are just three of many cuts that have taken place, yet, for an astonishing reason, the Scottish Government have found money to make road signs in Gaelic everywhere throughout Scotland. I can understand why it would be justifiable in the Western Isles, parts of the Highlands or maybe in wee corners of Glasgow. My noble friend Lady Ramsay tells me that there are parts of Glasgow where Gaelic—or something akin to it—is spoken. However, all over Fife, Edinburgh and the Borders, railway and road signs are all in Gaelic and the cost is absolutely enormous. There are about 60,000 people in Scotland who speak Gaelic, but every one of them also speaks English, so what is the purpose? I also understand that in translating some railway and town names, it has not been easy to find a Gaelic equivalent. No doubt they have paid interpreters, translators and brilliant entrepreneurs of the language a huge amount of money to find a suitable Gaelic equivalent for some Scottish place names.

I hope the noble Lord, Lord Dunlop, can assure the Committee that, if we do devolve pavement parking, the fault notices for people who park cars improperly on the pavement do not have to be printed in Gaelic as well as English.

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The Earl of Kinnoull: I wonder if the noble Lord can advise the House what the Gaelic for “Cumnock” is.

Lord Foulkes of Cumnock: That would take some time. I am not a Gaelic speaker. I can speak in Doric if required. I remember my granny used to call me a “daft loon”.

Noble Lords: Oh!

Lord Foulkes of Cumnock: I see that has received some approval, even from the Liberal Front Bench. I know that the noble Lord, Lord Stephen, has a skill in the Doric that is unrivalled in this House. When I got upset, my granny used to say, “Dinna fash yersel”—and I didna. I will be getting a note from Hansard at the end of this.

All I am seeking is a hope that when we do agree, as I think we should—my noble and learned friend Lord Davidson, talking about blind people and others, in a serious vein, eloquently put the case that this matter should be dealt with by the Scottish Parliament—we will not have expensive notices in Gaelic as well as in English.

Lord Lyell (Con): I declare a case of anger solidarity with the noble and learned Lord, Lord Davidson of Glen Clova. He mentioned parking in Edinburgh to me at the weekend. But I notice, and your Lordships will see, that the amendment refers to “stopping on verges, etc”. That might be part of the Road Traffic Act 1988 but since the noble and learned Lord and I are both much acquainted with that great artery of Angus, the B955, which crosses both his parish and mine, I wonder quite what “stopping on verges” can be.

I quite understand that there could be problems in Edinburgh or urban districts with guide dogs and the rest on the pavements, but I also wonder whether there is a problem in Scotland which there is not in England. Perhaps when my noble friend the Minister winds up, he could explain whether there is a difficulty in Scotland, let alone in Edinburgh. For goodness’ sake, let us not get into speaking in Doric or Gaelic—let alone in the wilds of Angus—but is there a problem and can he sort it out in my mind? Certainly, as far as the noble and learned Lord, Lord Davidson, and I are concerned, there is a strong case of anger solidarity, and I hope my noble friend can resolve it.

Lord Forsyth of Drumlean (Con): My Lords, perhaps I could add to the anger solidarity by disagreeing with my noble friend and the noble Lord, Lord Foulkes. The Gaelic language is an important part of Scotland’s culture. Indeed, when I was Secretary of State, I did a great deal to promote it. The whole point of devolving power to the Scottish Parliament, if we are going to allow for differences on matters such as road signs, is so that it can do stuff like this.

The noble Lord is constantly telling me about the importance of being sensitive to the fact that the Labour Party has been destroyed in Scotland, that people have voted for the SNP and we have to take account of those cultural differences, and why devolution is important. He cannot will the means and then complain about the results. The reason that Scotland is covered in signs in Gaelic is the same reason that Ireland is

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covered in signs in Gaelic. It is a wish on the part of nationalist Administrations to reflect the national culture. In that respect, I agree with them entirely. The more it creates interest in and understanding of Gaelic, and the more people realise the extent to which the Highlander should be on our conscience, the better, as far as I am concerned. I support the amendment.

Lord Sanderson of Bowden: My Lords, I think there ought to be a bit of border solidarity here. I agree entirely with the noble Lord, Lord Steel, about the ability to have agreement north and south of the border on various matters relating to roads. For example, if you go through one village, as I do on my way to the train, there is a 30mph limit—that is in England, of course—and in Scotland it is 40mph. In the context of this amendment, which I agree with, we want to be sure that any changes that are made should ensure that it is not going to be too difficult for us to cross the border.

Lord Empey (UUP): My Lords, I was somewhat amused by the views of the noble Lord, Lord Foulkes of Cumnock, because road signage is something with which we are all too familiar, unfortunately. We have one little twist in the tale for the noble Lord. We have a system whereby a Minister who happens to hold the relevant portfolio for traffic signs will put the signs up in both languages—indeed, some of them are up in three languages, if you include Ulster Scots—but when there is a change, the new Minister will take them down.

Lord Berkeley (Lab): My Lords, perhaps we need an amendment stating that all road signs about broken pavements should be in two languages.

To return to the issue of broken pavements, I thought that the noble Lord, Lord Lyell, was beginning to imply that there were not many pavements in Scotland and you had to walk on the muddy verges or get splashed by cars. I do not think he meant that. There are just as many muddy roads in England, Wales and everywhere else as there are in Scotland, I am sure. There is an argument for saying that issues such as broken pavements and enforcement should be devolved locally. Why should we here decide on the legislation for parking offences such as causing a broken pavement or double parking? The incidence of it is just as bad in Scotland as in England.

I commend the amendment, and Living Streets for giving us some very good information on it. It is relevant that the consultation in Scotland received the fifth-highest number of responses of any Scottish Parliament Member’s Bill; 95% of responses were in favour of this parking legislation. That demonstrates a lot of interest in having the change proposed in the amendment. I see no reason why the local Edinburgh government should not be allowed to prohibit parking on footways and pavements and at dropped kerbs, and double parking of vehicles. Clarification is needed of what the offences are and who should enforce them.

There is a similar issue in England and the situation is awful, actually. We have had many debates about what enforcement is carried out for various alleged crimes. It is like the PCSOs, who are allowed to fine bicycles for going through stop lines but are not allowed

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to fine cars. They are all going through stop lines—what is the difference? It would be nice if one day, the UK Department for Transport got on to this but in the mean time, I cannot see any reason why the Scottish Government should not be responsible for these local issues.

Lord Dunlop: My Lords, first, I pay tribute to the noble Lord, Lord Foulkes, for his ingenuity in taking the debate in a different direction from the one I was expecting and on which I have been briefed. In social media Twitter-speak, road signs are trending in the House of Lords.

Returning, with the House’s indulgence, to the new clause proposed in Amendment 53, introduced by the noble and learned Lord, Lord Davidson, this seeks to address questions that have been raised about the Scottish Parliament’s ability to tackle the issue of inconsiderate parking on pavements. This issue was raised by the shadow Secretary of State for Scotland, the Member for Edinburgh South, who was at the Bar earlier to listen to the debate. He tabled an amendment in the other place, which has been re-tabled for consideration by this House.

It is clear, as the noble and learned Lord, Lord Davidson, said, that this is a matter of great concern to many people, including people with disabilities, as well as the elderly and parents with pushchairs, who can find their way blocked by vehicles parked without due consideration for others who require access to the pavement.

Your Lordships may be aware that this is a complicated issue for which the devolution settlement has not been clear. There have been a number of attempts to bring legislation forward in the Scottish Parliament to tackle this, but they have not succeeded due to doubts over the legal competence of the Scottish Parliament in this area. In September 2014 the former Member for Edinburgh North and Leith, Mark Lazarowicz, tabled a Private Member’s Bill in the Commons to attempt to address this issue. At the time, the Government gave assurances that we would do what we could to address it, although we explained that the Scottish Government would need to be clear about what measures and powers they would support.

6 pm

To that end the Secretary of State, who was then in his capacity as Parliamentary Under-Secretary, wrote to the Scottish Government in December 2014 seeking their views. Since then he has remained committed to resolving this issue, which I know is an important one for many people. We need to ensure that there is clarity and that the Scottish Parliament has the necessary powers. To try to resolve this issue, the Secretary of State wrote to Derek Mackay, the Scottish Transport Minister, in June 2015 to ask that he engage with us to work out how to take matters forward. UK Government and Scottish Government officials have been working to address the detail of this complex issue. This Government remain committed to resolving it, and I reassure your Lordships that we are discussing possible solutions with the Scottish Government. We are making progress but, as I have said, this is a complex area of law and we want to make sure that we get it right.

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In response to the noble and learned Lord, Lord Davidson, both Governments will of course ensure that we engage with the appropriate and relevant groups on this matter. If it proves possible to conclude the discussion on the detail shortly, the Government will consider an amendment to the Bill. We will, however, continue to look at all avenues by which this can be achieved, and I will be happy to provide this House with an update on progress at Report.

It is not clear that the amendment we are discussing would amend the law in a way that would address the issue. On that basis, I do not believe that it represents the best way forward but I again reassure your Lordships that we are working to resolve this as quickly as possible. Given that we are discussing this issue with the Scottish Government, and given our expressed preference to resolve it, I urge the noble and learned Lord to withdraw his amendment.

Lord Davidson of Glen Clova: I thank the Minister for his reply. I would observe, however, that the noble Lord, Lord Steel, made a good point about the temptation within the Scottish Parliament to legislate difference for difference’s sake. One trusts that as the Scottish Parliament matures, it will resist that temptation. When it comes to resisting temptations, I will resist that to involve myself in the discussion either of Gaelic or the B955, and accordingly I seek leave to withdraw the amendment.

Amendment 53 withdrawn.

Schedule 2 agreed.

Clause 42: Policing of railways and railway property

Amendment 53A

Moved by Lord Empey

53A: Clause 42, page 45, line 44, after “property” insert “; but this exception does not apply in relation to the abolition or dissolution of the British Transport Police”

Lord Empey: My Lords, before I commence, perhaps I could just follow up on a serious note the point made in the last discussion. I think that we are all in favour of the promotion of minority languages, but the danger we have seen is that a genuine love of a language has been seized upon and used as a badge of difference. That is the risk attached to all these things.

I tabled this probing amendment because I was slightly puzzled and concerned at the potential direction of travel that could be achieved by the outworkings of this clause. First, as I understand the Bill at present, it does not in and of itself alter the existing arrangements for policing railways and transport as set out, but it provides the potential for a subsequent point at which the Scottish Parliament and Government could take over responsibility for the functions of the British Transport Police, its chief constable and senior officers and of course for its equivalent of a police authority. We all know that we live in dangerous times; I just wonder whether we are trying to fix a problem that does not exist here.

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I am not aware of there being a series of complaints about the conduct of the policing of transport in Scotland. As far as I can see from the figures, the police are bearing down well on crime—crime on railways, as I understand it, is diminishing in Scotland—but there are two or three areas that would concern me. First, where policing functions are devolved to the Scottish Parliament, it is natural that there will be an interest in all matters pertaining to police, but I think we would have to acknowledge that transport policing is not a geographically based function. Indeed, it is the very opposite of that, and a specialist series of skill sets are required to perform its functions. One of the most significant of those skills is of course counterterrorism, because transport links are used regularly by terrorists to carry out their activities. Sadly, we have seen in the last few months in Belgium and France, as we saw previously in Spain and other countries, attempts being made to use the transport network to promote terrorism. So people who have an expertise in that area and are used to dealing with it in transport terms have certain skills.

Sadly, another thing that has happened is that transport networks have attracted people who have sought to end their lives. That can also cause huge distress and great disruption. We also know that people traffickers and other elements use transport networks to fulfil their functions and carry out their nefarious activities. I am a little concerned that here we have a service that is being performed and, as far as I can see, performed well. I am not aware of complaints about the operation of the British Transport Police, as they apply to Scotland. We can also tell that when certain crimes are committed, the precise jurisdiction in which they are carried out can be unclear. We are talking about a border which is not immediately obvious to a passenger.

I would also like the Minister to tell the Committee whether, in the circumstances where the Scottish Parliament decided to take over responsibility, would a British Transport Police officer have the power of a constable in Scotland? Would that person be able to function on the Scottish side of the border, in circumstances where Police Scotland would be the authority in charge and responsible? Is there not the potential for huge confusion here? It is important that the Committee teases this out at this stage so that when we come to Report and so on, we have clarity. Are we trying to fix a problem that does not exist?

There is a unique skill set in policing not only the railway network itself but the stations and associated estate that go with it. It is difficult for a service that has existed for many decades, and built up that expertise, all of a sudden to transfer that expertise to a geographically based police service that quite naturally thinks and deals with things in a totally different way. Given also that we are talking about a GB-wide network which respects no border—in so far as railways, in particular, pass through borders without any distinction between one area and another—surely there is some sense in having consistent and coherent policing of that network.

That is not to say that the Government and Parliament in Scotland would wish to exclude themselves from any interest in these matters—of course they would be interested, and quite rightly so—but what purpose is being served by this if there is no evidence that a

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problem actually exists? If there is no evidence that crimes are going undetected or that there is a major failure here that needs to be addressed, I would just be concerned, as we had some experience of this in our own jurisdiction. We had to wait for over three years before we could get political agreement to get the National Crime Agency going in Northern Ireland because people had a political issue with it—not a policing issue with the NCA but a political one. In circumstances that included people trafficking, smuggling and potential terrorists coming and using our area as a backdoor into the United Kingdom, it was not the policing issue that was at the top of the agenda.

Why has this particular issue been given such prominence? It is inconceivable that proceeding to change and hand over these functions to Police Scotland would have no potential effect on the United Kingdom. This is not something that has no implications for the rest of us, for the following, simple reason. If criminals originate on the Scottish side of the border, what are the co-operation and communication issues going to be? Are we suggesting that a Scottish police constable would be on the train as it left Scotland, and does that mean that there has to be a British Transport Police officer when it gets to Cumbria in charge of an investigation or tracking a criminal or a criminal gang? These are the sorts of questions that we have to ask, and this Committee is the right place to ask them.

Virtually all parties are committed to the implementation of the Smith commission, and I am not in any way trying to stand in its way, but where there is an issue which could affect all of us, it is fair to say that we are perfectly entitled in this Parliament to ask these questions and to seek explanations. I beg to move.

Lord Forsyth of Drumlean: My Lords, I rise to support the amendment of the noble Lord, Lord Empey, as this is a crucial proposal in the Bill. The origins of it were in the Smith commission’s report, following which the Government said:

“How rail transport is policed in Scotland will be a matter for Scotland once the legislation is passed”.

I noted that last year Scotland’s Justice Minister said:

“It’s been the Scottish government’s view that this would be better if it was integrated into Police Scotland given that it would sit alongside our national police service”.

At one time, we had local police forces which commanded respect and were extremely efficient, and a system that worked very well in Scotland. My old constituency in Stirling, where I live, had the Central Scotland Police, which was the smallest in Scotland; there was also a Highlands police force. Those forces were able to deal with issues while understanding the culture, background and nature of the areas to which they were responsible. That worked extremely well, but the system has been smashed up with the creation of this national Police Scotland force. It was going to save a lot of money, but the result has been a complete disaster. We lost the first chief constable in a series of controversies over arming the police, the inefficiency of the service and various other matters. We have seen infighting and disruption in the governance body responsible for Police Scotland, with the resignation of the chairman. The whole thing has been a disaster from every point of view.

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6.15 pm

In my view, it is a matter of constitutional concern that we now have one policeman in charge of the whole of Scotland, reporting to the First Minister and the Scottish Government, rather than the diversity which we had before, which provided a safety valve and security for operational independence. I know for a fact that, certainly under the previous First Minister, the temptation to get involved in operational matters was not always resisted, which is a disgrace. Talk to any policeman in Scotland and they will tell you that morale in the police force is at an all-time low. I remember Scotland’s police force as being well respected and in touch. We had none of this. It has come about from ill thought out reorganisation.

Clearly, we cannot unwind the clock and set back what has been done. It is obviously of great importance that the new chief constable is given every support and encouragement to try to bring about the changes that are necessary, so that we do not have the kind of appalling circumstances which we had in Stirling, where someone lay by the side of a motorway for three days after their accident had been reported, or with the elderly lady who went missing in Glasgow, where there were failures of communication. Worst of all, the people at the top then picked on some person way down the line, trying to pin the blame on them for a botched reorganisation with disastrous consequences.

Lord McFall of Alcluith (Lab): Does the noble Lord not agree that one of the real problems a number of years ago was when they got rid of the local police stations and introduced a centralised call centre? Now you phone a central place in Scotland, which is unaware of the locality and the issues in it, and where there are complications with communications. I saw that when I was a Member along the road there. That was the start of the real problem, which led to this centralisation. The more we get back to local police stations and local reporting, so that we can go into our stations and report issues where they understand the local area, the better. We are on the wrong track.

Lord Forsyth of Drumlean: I entirely agree with the noble Lord. He is absolutely right. In my old constituency of Stirling, we used to have a police station in my own village; we had them in Balfron and elsewhere, but they have all disappeared. We now have two wildlife policemen who are going around trying to find someone to prosecute for something—without much success, I am told, and at vast expense. All of this is absolutely in the face of what local people say they want, which is local policing and local involvement. One of the great ironies of this whole devolution project is that it was supposed to be about returning power to local people, but the Scottish Parliament seems to have been absolutely concerned to centralise everything and to take a very authoritarian view.

This proposal to break up the British Transport Police —I am now on the amendment—is an absolute classic example of the failure of thinking which has brought such disaster to Scotland’s police force. British Transport Police has been there certainly since the 1850s, when it was realised that a railway would enable criminals to move around the country and that it was necessary to

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have a police force on the trains with the authority to act wherever its officers were. That system has worked brilliantly; it is one of the great success stories.

The truth of the matter is that the reason that the nationalists do not want to have the British Transport Police is because of the “B” in British Transport Police. Perhaps we could just call it something else—perhaps we could call it the “National Transport Police” —and then we could get agreement that it makes sense to have a cross-border force run on a cross-border basis. It has done the most brilliant work, not all of it publicised for obvious reasons, on drugs hauls that have been taken from trains at Glasgow that have come from the south, on the movement of terrorists and others who threaten us, and on the integration of the Glasgow underground with the London Underground and the whole of the transport system. The BTP is a group of people organised in four divisions—there is a Scottish division—who understand and have the expertise to deal with the intricacies of policing a transport system. That is a success, and for it to be smashed up would be crazy.

I know that the Minister will say that the amendment is unnecessary and the clause does not actually provide for the breaking up of the British Transport Police, but we know that that is what the Scottish Government intend to do. In doing so, they will undermine not just the security of people in Scotland, as the noble Lord, Lord Empey, said, but the security and enforcement of law in the United Kingdom as a whole. This is not a matter which should be subject to devolution; this is a matter of national, United Kingdom interest. I very much hope that the Government will drop it from the Bill. The rather throw-away line that we got from the Smith commission, which showed no understanding of what the British Transport Police has been doing, is, to say the least, a disappointment.

The fact that the Justice Minister in Scotland should announce that he wanted to get rid of the British Transport Police and integrate it into the Scottish police with no consultation whatsoever, and in the face of strong opposition from former commanders in Scotland, who actually did the job, but who are ignored, is unacceptable. I very much hope that the Government will feel able to accept the noble Lord’s amendment or, even better, drop the whole thing altogether.

Lord Wallace of Tankerness: My Lords, my noble friend Lord Stephen and I tabled clause stand part debates on Clauses 42 and 43 because it is important that the Government should justify to the Committee why they are taking this step, not least given the remarks of the noble Lords, Lord Empey and Lord Forsyth. After all, I am told that the British Transport Police has reduced crime on Scotland’s rail network by 56% since 2005, compared to an overall reduction of crime in Scotland of 38%, so it is clearly doing something right.

Paragraph 67 of the Smith commission report states:

“The functions of the British Transport Police in Scotland will be a devolved matter”.

That is a slightly different thing from saying that the British Transport Police shall be devolved. We really ought to have an explanation from the Government as to why they have chosen this form of devolution. It is

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complex. No doubt the Minister will give a fuller explanation, but until legislative competence has been devolved, which is what I understand Clause 42 is intended to do, the Scottish Parliament cannot make provision for what will happen and the British Transport Police will continue as a cross-border public authority under Section 88 of the Scotland Act 1998. The Minister may want to indicate what that means in practice. Does it mean more than that UK Ministers are obliged to consult about appointments and the like and that reports must be laid before both the UK Parliament and the Scottish Parliament?

The Scotland Office briefing note that was given to noble Lords at a very worthwhile briefing way back in November said that this was a first step. We want to know what the next step and subsequent steps will be. Considerable concern has been expressed about this provision.

It is no secret that I am a pretty strong home ruler, but I cannot say that the devolution of the British Transport Police was ever near the top of my agenda of things that needed to be devolved. One wonders where it came from. Perhaps the secret is in what the Scottish Justice Minister said, in what sounds very much like empire-building, whether on his part or that of Police Scotland, to try to subsume the British Transport Police. That is the concern: that the British Transport Police is to be subsumed into Police Scotland. As the noble Lord, Lord Forsyth, indicated, Police Scotland seems to have enough on its plate at present, although I agree with him that the new chief constable must be given the opportunity to try to restore both morale in his force and confidence in the public.

The speech of the noble Lord, Lord Forsyth, was very passionate, raising the constitutional issues of having a single national police force. I just wish that he had spoken to the Conservative Party in the Scottish Parliament—and that the Labour Party in the Scottish Parliament had taken cognizance—because the Liberal Democrats were the only party in the Scottish Parliament that stood against the creation of a national police force.

Lord Forsyth of Drumlean: I did, but, for extraordinary reasons, it decided not to take my advice.

Lord Wallace of Tankerness: Plus ça change, plus c’est la même chose.

I am uncomfortable about the arguments about what might happen when devolution takes place—that is an argument for a different forum—but clearly, devolution is not the same as abolition. As I said, the Smith commission said that it should be the functions of the British Transport Police that are devolved. The British Transport Police Federation made a submission to the Scottish Parliament’s Devolution (Further Powers) Committee in which it set out a number of options.

One option consisted of proposals of a legislative administrative nature, which would devolve policing and embody in statute arrangements by which the Scottish Government could give direction to the BTPA and specify direction of railway policing, but the model would provide that the chief constable of the British Transport Police would engage with Scottish

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institutions in the same way as the chief constable of Police Scotland does at the moment. Responsibility for pensions, employment contracts and defraying the cost of policing to the rail industry would remain with the British Transport Police Authority, although the Scottish Police Authority would have great involvement at strategic and planning level. Another option was to achieve devolution by administrative rather than legislative means, maintaining the responsibility on the BTPA to pass on the cost of the force to the rail industry, as well as responsibility over employment matters and pensions.

The Government owe the Committee an explanation of why they adopted this particular form of devolution, given that it was the functions of the British Transport Police rather than the police themselves that the Smith commission recommended be devolved.

We should not lose sight of what the British Transport Police is and what it brings to the service. Interestingly enough, it is not responsible to the Home Office; its sponsoring ministry is the Department for Transport. That is important. It means that it has particular training and skills which are different from the rest of the police force. Can we be assured that in any scheme for transfer, particular provision will be made to maintain those skills—for example, dealing with level crossing incidents and trespass? We have heard about drugs and terrorism—although I know that those who work within Police Scotland in liaison with the Metropolitan Police and others are very important. The noble Lord, Lord Empey, mentioned investigations of suicides—the tragedies that happen on our rail network.

The briefing made available to the Scottish Parliament committee stated that under Operation Avert, which is being promoted by the British Transport Police at the moment, there has been a 30% reduction in suicide attempts over the past year. That is very valuable, and we need reassurance from the Minister that will not be lost.

What engagement has there been with staff? I understand that there are about 50 civilian posts and 230 police officers with the British Transport Police in Scotland. They are not tied to the police pension scheme; there is a separate, private pension for British Transport Police officers. Will the provisions safeguard the employment and pension rights of serving officers? What are the financial implications?

The Scotland Office briefing states that the British Transport Police costs are met through charges for the policing services it provides. Will the secondary legislation allow for train companies to be charged? If so and there is an incorporation into Police Scotland, how can we ensure that charges made to railway companies will go to provide the services to the rail network and not just into a pot used to fund other policing services? It is important that we are given some reassurance that they will go to services relating to railways and railway properties.

The notion of cross-border institutions, which appears in the Scotland Act, is sometimes not fully understood. You can have a service and a function that literally is cross-border—that is, it operates in Scotland as well as England but is a reserved matter, not run by a cross-border authority. Here we have, as a result of Clause 43, something that is both; it will be cross-border

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institutionally and very literally cross-border in what it does. That point was well made by the noble Lord, Lord Empey.

6.30 pm

An estimated 20 million passenger journeys started by people in Scotland go cross-border—so what will the relationship be if Police Scotland is to be responsible for trains north of the border and the British Transport Police remains responsible for what happens on the same trains when they cross the border at Gretna or just before or just after, depending on in which direction you are going, near Berwick-upon-Tweed? These are things that at the moment do not necessarily bother us, because the system works with a unified British Transport Police. When responsibility is divided, it will not be through malice or ill will, and no doubt there will be umpteen co-operation agreements—but when you have a divided force, the chances of something going wrong or someone slipping through the net must surely be enhanced.

The Minister has to indicate why this form of devolution was proposed and how he will address the many very serious concerns that have been expressed about how it might work out in practice.

Lord McCluskey: I spent more than 50 years in the criminal and civil Scottish courts, as an advocate and prosecutor and as a law officer and a judge, and I never had encountered any problem arising out from the British Transport Police. I support the point made by the noble Lord, Lord Empey, that there is no problem here to be dealt with. The second point simply relates to paragraph 67 of the Smith commission report, which, as the noble and learned Lord pointed out, refers to the functions of the British Transport Police and says that they will be a devolved matter. There is no reasoning whatever behind that; we do not know where it came from or where it was supported, even by the Liberal representatives on the Smith commission. I would be interested to hear from some of them what the reasoning behind that was, because it is not detectable from the Smith report.

Lord Sanderson of Bowden: I, too, have grave concerns about this part of the Smith commission report, in paragraph 67, on the functions of the British police in Scotland being a devolved matter. We have heard from somebody from Northern Ireland on this whole question of security, which is so important. Why, if we have something that works as the British Transport Police does, do we change it? It is very dangerous to change it in this Bill—and I hope that my friend on the Front Bench will be able to give us a reasonable answer.

Lord Berkeley: I wonder whether it would be useful to reflect on some of the things that the British Transport Police currently does. Like it or not—and most people like it—we have some very highly congested railways in this country. Sometimes the trains go very fast, and some of them are freight. Here I declare an interest as chairman of the Rail Freight Group. Some of the passenger ones go even faster. One thing that the BTP does is make sure that people do not trespass on the railway, be it in towns, countryside or whatever.

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There have been one or two occasions when the local police force—I cannot say where—has trespassed on the railways and put their own lives and other people’s lives at risk by not knowing how the trains work. The BTP knows how the trains work.

There is the issue of suicides, as noble Lords have mentioned, and the issue of graffiti. None of us likes graffiti on trains. Where does the graffiti get put on? It gets put on in depots. Now depots are where the trains get parked when they are not used, and they are lovely places to go into because you can hide from people and probably not be seen. Most have fences around them, but some have electrified lines. People who do not know could hurt or kill themselves. The BTP is involved in all that. Then there is the question of passenger crowd control; we have all seen what happens when there is underground congestion, and they stop people going down there. London Underground does it all, but if there is beginning to be a problem and the police feel that they need to be there, they are there—and they know how to deal with crowds. Noble Lords have probably read about some of the issues facing London Underground at the moment, because of the growth in traffic. Wrong action by a policeman or policewoman who does not know the layout of Underground or mainline stations can put lives at risk, again—and that is the kind of knowledge that the British Transport Police has built up over the years. Level crossings and the deaths that happen there—that is another piece of knowledge that the BTP has.

It would be a great shame to lose this specialist knowledge. Railways are different from roads. Everybody knows what happens on roads, and how you try to avoid problems, and the police are very good at it. On railways it is different, and there is a different type of control because if a driver sees something he cannot stop, unless he is very lucky; he has signals but, if somebody is on the line, he cannot stop. That is going to get very nasty, because trains are not designed to stop on a penny.

Having a national force is highly desirable. I agree with all noble Lords who have spoken who have said that they cannot see any reason for changing it. But let us also look at frontiers. There have been problems in the past, which I am sure my noble friend Lord Faulkner will talk about. Can the BTP be in hot pursuit outside railway property? The noble Lord, Lord Empey, mentioned that. It has got better these days, but there is still a problem; there certainly will be a problem if there is a kind of frontier for police between Scotland and England. I travel a lot on the continent, usually on railway activities, and we have all seen the problems between France and Belgium and the apparent lack of communication between the police forces of those countries. The solution that they have come up with is to have police or security checks at all the stations approaching the frontiers. Heaven help us if we have that between Scotland and England; whatever happens in future, we need our trade and our passengers to get through. But the fact remains that, as other noble Lords have said, if there is a need to go across between England and Scotland it needs to be done in the easiest possible way and nobody should stop the expertise of the British Transport Police from being able to do it.

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I personally see no reason why this is thought a good idea. The suggestion of the noble Lord, Lord Forsyth—that we should get rid of the word “British” and turn it into a national force—would probably be a good compromise. But I worry seriously whether the BTP’s expertise on railway matters, stretching from John O’Groats right down to Cornwall, would be affected in any way, with the result that the non-specialist police person, doing their best, gets into trouble on the railways in pursuit of whatever they are trying to do.

Lord Forsyth of Drumlean: I was not suggesting that the name would be changed—I was saying that it might suit the nationalist agenda.

Lord Hope of Craighead: When the Minister replies on Clause 43, could he give us some other examples of cross-border authorities? As I understand Clause 43, it does not abolish the British Transport Police or alter its functions in relation to Scotland; they will be devolved, if Clause 42 is passed. But it would help the Committee if we had some examples of other cross-border authorities, so we can grasp what kind of things we are dealing with. From points that other noble Lords have made, it may be that we are not really comparing like with like, in talking about the kind of cross-border authority referred to in the Scotland Act—or the Orders in Council passed under it, presumably under Section 88(5). They are relatively simple creatures, which do not have implications of the nature described by other noble Lords. But some examples of other cross-border authorities would help us to grasp the implications of this very significant clause. I hope I am not asking the Minister to do something for which he is not prepared, but if he could write to us and give us examples at a later stage, that would be very helpful.

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

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

I find it extraordinary that this proposal to lose that ability should come forward now. I should remind your Lordships that breaking up the British Transport Police has been tried once before. It was done around the year 2000 by somebody called Ken Livingstone, who was Mayor of London. He was anxious to hand the duties of the British Transport Police over to the Metropolitan police force because he felt he had some control over it. The Government of the day, after some deliberation, decided that that was not a sensible thing

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to do and it was much more sensible to build on the skill and expertise of the British Transport Police; extend its jurisdiction, to which my noble friend Lord Berkeley referred, where necessary; give it, after some reluctance, the opportunity to arm a limited number of its officers, which it had asked for; and, above all, encourage it on what it did really well, such as combating scrap metal theft. The BTP led the government task force on that subject and made a huge contribution to reducing the incidence of metal theft after Parliament passed two important pieces of legislation which regulated that business.

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

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

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

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

In particular, there is the thing that has caused me problems professionally throughout my career, which is everything to do with data. There would be an enormous discussion about who owns what data. Eventually there would be a decision on that, and then there would be enormous problems over the sharing of those data. Those problems would partially have been inserted by Parliament. All that would lead to an immense decrease in the effectiveness of the force. You would end up with two human resources departments, two IT departments and two sets of expensive management

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sitting on the top. You would not only have an enormous one-time cost, there would be continuing enormous additional costs and a decrease in effectiveness. That is a jolly bad result for citizens of the UK north and south of the border.

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

6.45 pm

Lord Forsyth of Drumlean: Is there not another complication: the fact that the financing comes from the operators? Who pays what would be an interesting discussion. The noble and learned Lord, Lord Wallace, made a point about how one would ring-fence the funds. That would be a good discussion.

The Earl of Kinnoull: It would be interesting and very lengthy. I thank the noble Lord for yet another item in the list. I am sure that if one sat down one could prepare a demerger list of horrible problems that would tax people for a very long time.

Earlier, we spoke about the Crown Estate and the fact that it appears that where the Smith agreement has got it wrong there is some wriggle room for making some small changes in the Bill. We came across a couple of them in the transposition from the Smith agreement to the provisions of the Bill that deal with the Crown Estate. I suggest to the Minister that this is another area where there could be some wriggle room. Alternatively, we could go for some sort of fudge with a dual reporting line so there would be a unitary, single British Transport Police with agreed rights of reporting, scrutiny et cetera that went to Scottish Ministers in respect of Scottish staff as well as to UK Ministers at the same time.

Lord Empey: That was how our problem with the National Crime Agency was resolved: through reporting mechanisms. Our policing board would receive reports from the chief officers of the National Crime Agency. That is precisely the mechanism that was used, and that eventually got the consensus.

The Earl of Kinnoull: I am very grateful for that as well. In my commercial career, that option has sorted out a number other problems and is a very useful technique. I would be very interested to hear the Minister’s views on what I have just said and on everything that everyone has said in what has been a very interesting debate on this vital area.

Lord McAvoy (Lab): My Lords, I apologise to the Committee for not being able to be here for start of the proceedings. I was away officially on Whips’ business. I thank my noble and learned friend Lord Davidson of Glen Clova for holding the fort so well.

The Bill makes the functions of the British Transport Police a devolved matter. I associate myself with all the praise expressed for the British Transport Police and its record since 1825. I have no hesitation in doing so.

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I have only one comment to make about the contribution by the noble Lord, Lord Empey. I fully understand where he is coming from; he is ad-libbing about the language situation in Northern Ireland. The situation is a wee bit more hopeful than he has perhaps indicated: there are classes in Irish in solid unionist east Belfast, so there are glimmers of hope.

In the opening contribution from the noble and learned Lord, Lord Wallace of Tankerness, he regretted and bemoaned that the Labour Party did not do what he wanted it to do in the Scottish Parliament. I can understand that disappointment and possible resentment, because the Labour Party here had to stand back and watch for five years as the Liberal Democrats backed every vicious and vindictive proposal on welfare put forward by a Conservative Government, with never a word against.

Clause 43 devolves executive competence in relation to the policing of railways in Scotland by specifying as a cross-border authority the British Transport Police Authority, the chief constable of the British Transport Police, the deputy chief constable of the British Transport Police and the assistant chief constable of the British Transport Police. This is in keeping with the Smith agreement, which states:

“The functions of the British Transport Police in Scotland will be a devolved matter”.

That was agreed. I understand also the suspicion and resentment that some Scottish National Party people seem unfortunately to be expressing the desire to get rid of the word “British”. I regret that. If that is their motivation, it does not say much for them, and we should concentrate on the core of the matter.

Designating the British transport bodies as cross-border public authorities means that appointments to the British Transport Police Authority or to the offices of chief constable, deputy chief constable or assistant chief constable will in future be able to be made only in consultation with Scottish Ministers. I know I should not have to say this but it should be on the record: devolution is devolution. You cannot agree the principle of devolution and then object to its effects. Devolution is devolution.

Lord Forsyth of Drumlean: Will the noble Lord give way?

Lord McAvoy: The noble Lord was a bit slow to intervene tonight.

Lord Forsyth of Drumlean: Yes, devolution is devolution, but, as was made clear earlier in the debate, this is a matter that affects the security of the whole of the United Kingdom. The noble Lord knows very well that the SNP Justice Minister has indicated that he wants to break up the British Transport Police. Is the opposition Front Bench really supporting this in the face of all the evidence that has come from the trade unions and the former leaders of the British Transport Police? Surely that is an extraordinary position for it to take.

Lord McAvoy: The noble Lord, Lord Forsyth of Drumlean, always takes a keen interest in the position of the Labour Front Bench. The fact is that the Labour Party supports the Smith commission, as do the Liberal Democrats and the Conservative Government.

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There is consensus. I know the noble Lord does not really like being described as a consensual figure—he would probably regard it as an insult—but devolution is devolution and it can, will and should be worked out in that atmosphere. I know the noble Lord is a bit puzzled by that, but I have accepted devolution and he should do the same and move on.

In March last year, as the noble Lord has indicated, the Scottish Justice Secretary signalled the Scottish Government’s intention that the BTP’s functions would be transferred to Police Scotland following the passing of this Bill. Once the power is devolved to the Scottish Government, that is of course a decision for them to make and to justify to the Scottish public, the Scottish electorate and the communities within Scotland. Having said that, in recent months there have been a number of legitimate question marks over the way in which the Scottish Government have chosen to manage the resources of the police force in Scotland since we have had this Police Scotland set-up, with police stations being shut—as my noble friend Lord McFall of Alcluith has mentioned—call centres closed and much-needed front-line police doing back-office functions. I make it clear that this is no reflection of the phenomenal work that our police officers do on a daily basis. However, we should view this as a further opportunity, and I have no objection to it, at the very least to assess all the possible implications of a merger between Police Scotland and the British Transport Police.

Lord Berkeley: If my noble friend is suggesting that it is Labour Party policy to devolve the British Transport Police, does the same apply to railways? I was not aware of that. Network Rail could be separate, of course; we could even have a separate gauge. I thought the whole idea was that we should actually have an integrated system.

Lord McAvoy: I thought I had all the trouble in front of me, but I have some behind me here as well.

Lord Forsyth of Drumlean: From everyone.

Lord Faulkner of Worcester: With lots more to come.

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

Lord Empey: I know that the noble Lord is a great supporter of devolution; he has indicated that on many occasions. I support it too. However, what we are talking about is not yet devolved, and that is quite a distinct

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difference. In many cases, where something has been devolved we can complain about how it has been operated, but this is not yet devolved, unless the Minister and the Government are treating the Smith commission as if it were a treaty—in other words, it is unamendable—in which case there is no point in bringing it here.

I understood that the function of Parliament was to examine legislation. While all the parties—unwisely, it seems to me—are basically supportive of the general principles here, there are specific issues. It is not simply the people of Scotland who will be affected by this; it is the rest of the people in Great Britain. That is why I believe there is a difference. If—with, one hopes, the maximum consensus—we can actually find something better, such as our compromise over the National Crime Agency, I would hope that the Labour Party would support that. I am not trying in any way to rubbish devolution. I know that the commitments were made, although I am quite sure that the noble Lord would have preferred if some of them had not been. Judging by his expression, I believe I am right there. Nevertheless we have a responsibility, and I think that this matter should be pursued.

Lord McAvoy: I thank the noble Lord, Lord Empey, for his contribution, but no one said that there should be no discussion. The facts of life are that in the House of Commons no one moved an amendment to the contrary. We did not move one. We have moved one here because we want more information about attitudes and, perhaps, information regarding discussions with the Scottish Government. None of the unionist parties in the Commons moved an amendment, nor did the Liberals; in fact no one did, so there must have been general acceptance in the Commons for the principle. No one said then that nothing should be changed from the Smith commission, though we will wait and see how that goes. Discussions will take place but I do not think they will make any progress. This idea has been thought through by the Smith commission and in the Commons, which is the supreme House of Parliament, and no one has seen fit to move the amendment, except us—to be fair, I think that the Liberals have come in for this reason as well—in order to get further discussion on it.

We share some of the concerns about the Scottish Government’s record on the single police force; we do not like it and have very grave doubts about it. However, there are strong views to take into account, including those of the British Transport Police, and in particular those of officers employed in Scotland, as well as the unions. Both have expressed concern about the implications for staff and passengers if these special policing skills were to be lost—and it would be wrong for that to happen.

7 pm

However, from the outset we have made clear that at the very heart of our approach to the Bill is a commitment to ensure that we get the very best deal for people in Scotland. It is therefore vital that the same level of services and protections which have up to this point been in place while the Scottish public travel is maintained. We must all play our part, not just in a debate here to get a bit of attention but to

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scrutinise this to make sure that it goes ahead. We all have a role to play in this; the Scottish Government need to account to the people for their actions, and we here can help do that. These specialist services and expert knowledge of the British Transport Police must continue to have as strong a presence following the devolution settlement as they have today.

Finally, can I finally ask the Minister a question which I do not think anybody else has asked tonight? What discussions have he and his colleagues had with their counterparts in the Scottish Government to be assured that the changeover does not have the teething problems referred to by the noble Earl, Lord Kinnoull?

Lord Dunlop: I thank your Lordships for what has been a set of powerful and knowledgeable contributions to this debate. Many of the points raised by noble Lords have great force. To address directly and upfront what the noble Lord, Lord McAvoy, asked, I can say that we meet regularly with Scottish Ministers—later this week the Secretary of State is meeting Deputy First Minister John Swinney—and these matters are obviously the subject of those meetings. I will ensure that the strong feelings that have been expressed in this House are conveyed to the Deputy First Minister and to other relevant Scottish Ministers.

The task of policing the railways in Great Britain is carried out by the British Transport Police, as has already been discussed, the priorities of which include tackling crime on the railways, minimising disruption to the railway as a result of crime or other incidents, and ensuring that passengers feel safe and secure on the network.

I was going to touch on history, but the noble Lord, Lord Faulkner, has already beaten me to it, and when it comes to railway or transport history I am very wary of tangling with him.

The BTP currently polices the national rail network in England, Scotland and Wales, as well as the London Underground and some other light rail networks. It operates under a divisional structure, comprising three geographically defined areas: Scotland, London and the south-east, and the remainder of England and Wales. Today a large proportion of the rail network in Scotland is self-contained and is currently policed by just over 200 BTP officers out of a total BTP staff of 3,000 officers.

Lord Wallace of Tankerness: The Minister said “other light rail networks”. Does the BTP have any responsibility for the Edinburgh trams?

Lord Dunlop: That is a very good question to which I do not know the answer, but I will be very happy to clarify that point for the noble and learned Lord. Noble Lords have raised a range of important issues, and I will try to cover as many of these as I can in my response.

Lord Forsyth of Drumlean: Could my noble friend tell the House what he thinks is meant by the words in paragraph 67 of the Smith commission report:

“The functions of the British Transport Police in Scotland will be a devolved matter”?

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I read them to mean that the British Transport Police will continue and that its functions will be subject to some kind of oversight by the Scottish Parliament, which is not what the Bill provides for. Does he have a different interpretation?

Lord Dunlop: If my noble friend will let me continue, I hope to set out what our approach is here and address some of the points that were raised by the noble and learned Lord, Lord Wallace.

Lord Forsyth of Drumlean: Of course I want my noble friend to address the points that have been made, but could he just answer that point? The noble Lord speaking for the Opposition said that whatever the Smith commission report says is written in stone, but what is in the Smith commission is not consistent with that. Can my noble friend explain what he thinks the commission meant?

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

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

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

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

Upon the completion of the transfer of policing of railway functions to the new Scottish model devised by the Scottish Government, the designation of the BTP

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bodies as cross-border public authorities will be removed and the BTP will exercise functions of policing for railways only for England and Wales.

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

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

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

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

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

The need to maintain high levels of service should be at the forefront of any planning for an efficient and effective transfer of functions. As the noble Lord,

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Lord Berkeley, mentioned, BTP officers have a wealth of knowledge and important skills, which it will be important to retain and ensure are reflected in any new Scottish structure. The expectation from the discussion we have had so far with the Scottish Government is that a specialist transport policing unit will be established within Police Scotland. The transfer of experienced officers from the BTP will help ensure that these valuable capabilities are appropriately shared, and we will continue working with the Scottish Government during this important period.

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

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

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

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

Lord Wallace of Tankerness: I raised a number of questions, one of which concerned funding. I know that the devil is in the detail but, from his discussions thus far with the Scottish Government, can the noble Lord give us some indication of the United Kingdom Government’s ideas regarding the funding arrangements that will be put in place?

Lord Dunlop: As I have just said, this is about devolution to the Scottish Parliament. Following devolution—and this matter will form part of the discussions—it will be for the Scottish Parliament to determine what the charging arrangements will be. However, perhaps I may end on this point. Democratic accountability is absolutely key here. I do not think that the voters of Scotland would be very pleased if the Scottish Government, through the train operating

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companies, increased costs to the travelling public in Scotland. For all the reasons I have given, I urge noble Lords to agree to the clause.

7.15 pm

Lord Berkeley: The noble Lord mentioned funding by the train operators. He will be aware that, as the noble Lord, Lord Sanderson, said earlier, 50% of the funding of the BTP UK-wide comes from Network Rail and the other 50% comes from the train operators roughly in proportion to their passenger miles. He said that Scottish train passengers would not want to pay for this, and that will mean that the BTP will have to be paid out of general Scottish financing rather than through the current arrangement. The consequence of that will be that the budget will be cut pretty quickly and everything will be integrated. I would also be interested in knowing how Network Rail’s contribution will be arranged. Is it legal and how will it be done? Will it be on the basis of track miles or something else? Those are the sorts of questions to be answered.

Lord McCluskey: Perhaps the Minister would take a short question from me. Is he advising the Committee that Clauses 42 and 43 enact the provision contained in paragraph 67 of the Smith commission report and nothing else?

Lord Dunlop: I am saying that these clauses provide the framework that allows us to go forward, but the Scottish Government have to decide what operating model they want for the policing of the railways in Scotland. I said that I anticipated that it would take two to three years before these functions were devolved, and that is because all sorts of contracts with third parties are involved here—the noble Earl, Lord Kinnoull, talked about pensions. I do not underestimate the complexity involved and I hope the Committee will understand if I do not have specific answers to all the questions; we will be working with the Scottish Government to clarify them over the next two to three years.

Lord Forsyth of Drumlean: I do not understand why the Government are bringing proposals to this House which have not been thought through. It is no good saying, “Oh well, the Scottish Government will need to work this out over the next two years”. Does my noble friend not recognise that this matter affects the rest of the United Kingdom? This is about maintaining a perfectly adequate system of policing upon which the larger proportion of the population depends. My noble friend is a Minister in the United Kingdom Government. If he brings forward legislative changes, surely he has a responsibility to explain to us how they are going to affect the United Kingdom. It is a case of the tail wagging the dog if we say, “This is a matter for the Scottish Parliament to decide. You just pass the legislation and we’ll try to work something out”. Surely my noble friend can see that he is not responding to the points that have been made, which concern the security of the United Kingdom and England in particular.

At the beginning of his speech I asked him a specific question, which has been asked again by the noble and learned Lord. It was whether he thinks that

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these clauses provide for what is contained in the Smith commission report, which says simply:

“The functions of the British Transport Police in Scotland will be a devolved matter”.

It does not say that there will be legislative control over the British Transport Police or that the British Transport Police will be broken up and there will be a separate Scottish force—it does not say that at all. The noble Lord, Lord Empey, indicated earlier that it would be perfectly possible to give the devolved Parliament some involvement in the British Transport Police without breaking the BTP up.

The clauses we are being asked to support tonight are completely vague as to the outcome. Does my noble friend recognise that he has not responded to the debate and has not dealt with the fundamental question that is being put: what will happen to England and Wales and the rest of the country, and why is it necessary to break up a perfectly efficient organisation in order to meet the requirements of paragraph 67 of the Smith commission report? As the noble Lord, Lord Empey, said, the Smith commission report is not a treaty; it is advice to Parliament and we are discussing a Bill.

Lord Dunlop: In answer to my noble friend, the function of the BTP is the policing of railways, which is the subject matter of these clauses and what we are devolving in this Bill. That is what the Smith report stated and we are committed to delivering that agreement.

Lord Berkeley: Will the Minister answer the question that I put to him a few minutes ago, please, on the financing of the British Transport Police north of the border?

Lord Dunlop: I did answer it, to the extent that there is a plethora of detail that lies behind this. However, it requires, as I said, the Scottish Government, in discussion with the UK Government, to specify what their operating model is. Until we have that, we cannot answer in a lot of detail. I come back to the fundamental point that we are devolving something, and it is for the Scottish Government and Parliament to decide how that will work within Scotland.

Lord Wallace of Tankerness: On that point, and in reflecting on his answer to the noble Lord, Lord Berkeley, and his earlier answer to me, which he has just repeated, does that mean that the Scottish Parliament and Government could load up the charges on Network Rail, which is a pan-UK body, and would that therefore have implications for transport rail users in England and Wales, as well as in Scotland? Does he not think that that is a matter on which the United Kingdom Government should have a view?

Lord Berkeley of Knighton (CB): Just before the Minister answers that question, and at the risk of throwing another Berkeley into the hat and confusing life still further, I have listened to the debate this evening and am confused by the point that the noble Lord, Lord Forsyth, wishes to clarify: how this will affect members of the United Kingdom. I do not really feel that I have got an answer to that. It seems to me that it will affect them, and I wonder what the

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Minister feels about that. Although I understand it, the answer he gave does not quite elucidate the problem we have here.

Lord Dunlop: I hesitate at this point in the evening to introduce the concept of no detriment, and I look forward to Committee day 3, when I am sure we will cover this in great detail. However, the UK Government absolutely have an interest in ensuring that whatever devolution takes place in this space does not cause detriment to the rest of the United Kingdom.

The Earl of Kinnoull: The noble Lord, Lord Empey, and I suggested that a solution to this could be a dual reporting structure. I would be happy to explain that afterwards, as I am sure the noble Lord would be. In view of the fact that three or four years of work is stretching before us, which sounds very expensive to me, it might be cheaper just to ask the opposite numbers at Holyrood at one of the forthcoming meetings in the next few weeks whether the pragmatic suggestion of going down the Empey/Kinnoull route might cut the mustard. If it does, it would be a heck of a lot cheaper and, I believe, much more effective. It is a free question. Will the Minister consider at least asking, to see whether they might accept this slightly different approach?

Lord Dunlop: I will certainly reflect on the points that have been raised in this passionate debate. No doubt we will return to this subject.

Lord Empey: My Lords, the noble Lord, Lord Dunlop, is a very capable Minister but, throughout his contribution this evening, not even he has been able to offer one scintilla of rationale for doing this. There is no advantage to be gained; we all know that. It is an ideological path that people have set themselves on and we are dealing with the consequences of that. This is not the opportunity to elaborate on the point that the noble Earl, Lord Kinnoull, made. However, the solution we found was to have the police authority receive regular reports, including personal questioning, and to have responsibility for the actions that would be taken by the NCA in Northern Ireland, which would be answerable to the authority but ultimately under the control of the national Government. A solution can be found somewhere in there. As I said, it is not a matter of depriving the Scottish Parliament of any interest—of course it has an interest—but I feel that we should now proceed to Report. I hope that the Minister will wish to discuss the matter with some of us between now and then. In those circumstances, I beg leave to withdraw the amendment.

Amendment 53A withdrawn.

Clause 42 agreed.

Clause 43: British Transport Police: cross-border public authorities

Debate on whether Clause 43 should stand part of the Bill.

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Lord Forsyth of Drumlean: My Lords, I had no intention of speaking on this matter or detaining the House, but I have to say to my noble friend that, in the light of the reply that we got, I feel that I should make a number of points, without repeating the arguments over and over again. It should be absolutely clear to my noble friend that there is feeling in all parts of the House that what is being proposed is neither consistent with the Smith commission proposals nor desirable in terms of the needs of the rest of the United Kingdom to have adequate security and proper policing of our transport systems, particularly for cross-border purposes.

During the debate on the amendment from the noble Lord, Lord Empey, my noble friend was asked to give examples of cross-border authorities. He suggested in his reply that the Forestry Commission was an example of a cross-border authority. I can think of others concerned with the regulation of nuclear activities in the United Kingdom, for example. I am very concerned that a precedent is being set here that devolution means that, in Scotland, it is possible for decisions to be taken and devolved that have implications for the rest of the united Kingdom and which we just have to go along with because the Smith commission recommended it or the Government’s interpretation of the Smith commission’s proposals are that this legislative provision should be made.

I have no objection whatsoever to a provision that enables the Scottish Government and the Scottish Parliament to have some involvement in the functions and governance of the British Transport Police, as the noble Lord, Lord Empey, suggested. Indeed, I think that that would be highly desirable, if only to end the thought that this is something that should be conducted on a national, individual basis between the constituent parts of the United Kingdom. The joy and glory of the British Transport Police—which after all has done pretty well for nearly 200 years, as I discovered during the course of the debate—is that it operates as a cross-border United Kingdom body.

I gently suggest to my noble friend that he gives some thought to this in the context of his responsibilities as a Minister of the United Kingdom and comes forward on Report with proposals that meet the need to involve the Scottish Government without actually resulting in the destruction of the British Transport Police or its powers and ability to operate in a cross-border way. If he does not do so, I for one will join those who wish to go through the Division Lobbies to substitute something else. That would be very unfortunate. At the moment, our only option is to take these clauses out of the Bill altogether. That would create a difficulty for the Minister and for the noble Lord, Lord McAvoy, who has become the chief protagonist of the idea that everything in the Smith commission report has the status, as the noble Lord, Lord Empey, said, of a treaty that cannot be changed because it was agreed between the Governments.

7.30 pm

Lord McAvoy: I made no such suggestion. If the noble Lord would stop looking astonished at every second word that I say, he may understand what I am saying. The Smith commission was a hard process where five parties took part. He is decrying and insulting

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the good faith of the people who arrived at that conclusion. They spent a long time on it and went into a lot of detail. I believe that they did that in good faith and he should stop denigrating the people involved. The proposal was put through that process and arrived at after long consideration, and I support it.

Lord Forsyth of Drumlean: I am not denigrating anybody, but I gently remind the noble Lord that quite a few of those who took part in the process are no longer involved in parliamentary affairs. He says that it was agreed by all the parties, but none of the parties was consulted about this. This was a deal and a negotiation. I wager him a bottle of champagne that very few of the people involved in negotiations even knew that the British Transport Police was largely funded by the transport operators. I suggest that that is the case. The complexities involved would be unknown to them.

The noble Lord knows as well as I do that a problem was created after the referendum. People were desperate to find things to devolve. I can just see people saying, “Oh yes, the British Transport Police can be devolved”. The people concerned would not have had a clue about the intricacies of how the British Transport Police was funded. Perhaps the noble Lord is smarter than I am and perhaps he is aware of that, but as Secretary of State I was not aware of the detail of this until I discovered the need to look into it as a result of this amendment. I do not believe for a moment that those people acting in good faith knew the consequences of what was proposed.

Actually, the Smith commission does not require the Government to break up the British Transport Police or to act in the way that is provided in this clause. I ask my noble friend to think again please and perhaps talk to the Scottish Government. There is a compromise to be had that will meet the needs of both sides of the border and the needs of the country as a whole in respect of security—at a time when national security is absolutely at the top of the agenda and the security of our transport systems must be the number one issue of concern.

Lord Faulkner of Worcester: Does the noble Lord agree that consultation of the sort that he just described, which I would warmly welcome seeing established, should also include members of the British Transport Police themselves, the British Transport Police Authority and the British Transport Police Federation, Network Rail, which funds the larger part of its operation and the train operating companies? There needs to be a proper discussion about the role of the British Transport Police in a devolved Scotland. That has not taken place at all so far.

Lord Forsyth of Drumlean: Indeed, that is why I am so distressed by my noble friend’s response and the fact that it has not. We appear to be operating on the basis that whatever is in the Smith commission report, as interpreted by the Scottish Government, is what we do, and nobody has thought through the consequences. I hope before we come to a later stage of the Bill that the noble Lord’s suggestion is taken on board and my

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noble friend comes back with something that we can support. It would be very unfortunate indeed if this House were put in a position where it had to vote against the clause.

The noble Lord, Lord McAvoy, entreats us all to be as positive and committed to this process as possible. He has a part to play by opening his eyes and thinking about the consequences of this for the rest of the United Kingdom. I very much hope that this clause will not stand part of the Bill.

Clause 43 agreed.

Clauses 44 to 48 agreed.

Clause 49: Gaming machines on licensed betting premises

Amendment 54

Moved by Lord Bruce of Bennachie

54: Clause 49, page 51, line 36, leave out from “authorised” to “(or”

Lord Bruce of Bennachie (LD): My Lords, I rise to move this amendment in the name of my noble friends, with apologies to the Committee. I have not taken part in deliberations on the Bill so far because when it was last before the House, I had not made my maiden speech. Noble Lords will, however, understand that I have a very direct interest in it as a former leader of my party in Scotland who negotiated some of the original agreements for the first Scotland Act and the creation of the Scottish Parliament.

These amendments relate to gaming regulations. They have been tabled to try to ensure that the Scottish Government have a clear line of responsibility and that there is no confusion between the two Governments. The first two, essentially, would ensure that the Scottish Government have the right to vary the number of gaming machines regardless of the stake they carry. As it stands, the Bill specifically relates to a stake of more than £10. Our concern is that we need to be able to ensure that there is a clear line of authority, that the Scottish Government have the right to regulate all gaming and that there is no confusion about that.

It is important to recognise where Clause 49 devolves, by way of an exception from the current reservation in Schedule 5 to the Scotland Act 1998, power to vary the number of gaming machines authorised by a betting premises licence granted by a licensing board in Scotland where the stake is more than £10. But the Smith commission specifically stated:

“The Scottish Parliament will have the power to prevent the proliferation of Fixed-Odds Betting Terminals”.

The Committee will understand the pain and disastrous consequences that these machines have caused some people both north and south of the border. That legitimises the reason to ensure that the power exists to regulate them. These machines have been described as the crack cocaine of gambling because they are so addictive. It is possible for people to lose substantial sums in a very short time. It would be unfortunate if there were a diversion of power and authority, which the exception currently in the Bill seems to produce.

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That is the first point. These two amendments would remove the limitation of £10 and give the authority to the Scottish Government to regulate and reduce the number of all machines, regardless of the size of the stake.

The second is the exception that basically denies the Scottish Government the right to regulate those licenses that have already been awarded. The current exemption states:

“The amendments made by this section do not apply in relation to a betting premises licence issued before the section comes into force”.

Once it becomes apparent that, under the new legislation, the Scottish Government have the power to regulate gaming machines but not to regulate those that were licensed before the power was granted, people in Scotland will likely regard that as a slightly untoward situation.

I appreciate that people will argue that there are difficulties associated with revoking licences that have previously been issued, but it seems to me that that is nevertheless a matter for the Scottish Government to determine in the future. They need to make a judgment as to whether there are any practical difficulties. Why should the current legislation deny the Scottish Government the right to make that decision?

Essentially, these amendments seek to give a power to the Scottish Government to regulate all gaming machines regardless of the stake, to do so in a way that enables them to limit the number of machines, and to be able to make changes to those that were licensed prior to the Act coming into force. On that basis, I commend these proposals and I beg to move.

Lord Davidson of Glen Clova: I rise to speak to Amendments 55 and 57 in my name and that of my noble friend Lord McAvoy. The amendments would require licensing standards officers in Scotland to be recognised as authorised persons who may exercise inspection and enforcement functions under the Gambling Act 2005. In its submission to the Scottish Parliament’s Local Government and Regeneration Committee’s call for evidence to the inquiry into fixed-odds betting terminals carried out in August last year, the Law Society of Scotland outlined its concerns. Those concerns, previously raised with the Gambling Commission, are whether a licensing standards officer appointed under Section 14 of the Licensing (Scotland) Act 2005 has the power to carry out any of the enforcement activities under Part 15 of the Gambling Act 2005 in respect of both alcohol licensed premises and gambling licensed premises.

Unlike in England and Wales, the licensing authority in Scotland is the licensing board, which has no officers or employees. Licensing standards officers are officers of the local authority, not of the licensing board. This is confirmed in the Gambling Commission’s advice note on the role of authorised persons in Scotland and states that the enforcement powers contained in the Gambling Act cannot be exercised “as of right” by an LSO. As an authorised person, an LSO would be entitled to:

“Enter premises for the purposes of discovering whether facilities for gambling have been … provided, whether the premises are licensed for gambling and whether the terms and conditions of any licence are being complied with”.

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In addition, LSOs would have powers to,

“inspect any part of the premises … to question any person on the premises; to require access to and copies of written or electronic records kept on the premises; to remove and retain items which may constitute or contain evidence”.

Additional legislative competence is being devolved to Scotland in this area, and therefore we suggest that it is vital that the Scottish Parliament is given all the necessary resources to manage these increased responsibilities. That, we say, is exactly what Amendment 55 does. The authority of licensing standards officers must be beyond any doubt, and that is what the amendment seeks to achieve.

Separately, I turn now to the issues raised by the noble Lord, Lord Bruce of Bennachie. In setting the £10 limit, we suggest that the Government have failed to meet the recommendations of the Smith commission. We would be keen to know why a £10 threshold has been set. Is it perhaps that the Government wish to roll out a similar policy across the whole of the UK? That may be understandable. However, not only do fixed-odds betting terminals with a stake of less than £10 remain the responsibility of the UK Government but, crucially, the maximum stake threshold does not cover other reserved matters such as the speed of play or the type of game being played. The existence of a threshold would allow addictive casino games to be placed in Scottish bookmakers without recourse to the Scottish Government. That is plainly of concern. What, we ask the Minister who is to reply, is the policy justification for this aspect in Scotland?

Responding to a question on this issue in the other place, the Secretary of State for Scotland said that he was “reflecting” on it. At what stage are those reflections, and might the Minister explain how the Government’s proposals are in keeping with the Smith commission’s recommendation that the Scottish Parliament be empowered to prevent the spread of fixed-odds betting terminals? I look forward to his response.

7.45 pm

Lord Dunlop: My Lords, perhaps I may set the scene for Clause 49, which refers to gaming machines in licensed betting premises. The provision will give the Scottish Parliament the power to vary the number of high- stakes gaming machines permitted by betting premises licences in Scotland. This power applies to all gaming machines on which players can stake more than £10 per play, which was referred to by the noble and learned Lord, Lord Davidson. At present this is possible on sub-category B2 gaming machines only. These are the machines that are widely referred to as fixed-odds betting terminals. Further, the power conferred by the Gambling Act 2005 on the Secretary of State to vary the number of such machines permitted by new betting premises licences will be transferred to Scottish Ministers.

FOBT machines are located almost exclusively in high street betting shops, and it is these machines with a maximum stake of £100 and a maximum prize of £500 on which recent public interest and debate have centred. This implements paragraph 74 of the Smith commission report which was explicit in saying that the Scottish Parliament should have,

“the power to prevent the proliferation of Fixed-Odds Betting Terminals”,

and this clause achieves that.

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The Smith commission agreement was explicit in saying that the Scottish Parliament should be able to exercise new functions under the Gambling Act 2005 to increase or decrease the number of FOBTs which are authorised by new betting premises licences. The power is sufficiently broad to permit the Scottish Parliament or Scottish Ministers to reduce the number of FOBTs authorised to zero in a new betting licence. The Scottish Parliament will be able to prevent increases in the number of FOBTs created by the opening of new betting premises, as Smith proposed. Gambling and its impact on society is a topic which the Government understand and take seriously, and we remain alert to the changing dynamics of the wider debate and will act in this area as appropriate.

I turn to Amendments 54 and 56, which seek to extend the scope of gaming machines covered by the clause. These proposals go substantially further than what the Smith commission referred to. They would bring within the scope of the clause all gaming machines regardless of stake size. At present, a betting premises licence issued under the Gambling Act 2005 authorises its holder to make up to four gaming machines available for use. The Categories of Gaming Machine Regulations 2007 provide that this entitlement is limited to gaming machines which fall within sub-categories B2, B3 and B4 and categories C and D. The Smith commission agreement relates only to FOBTs, and the term FOBT cannot be found in the Gambling Act 2005, but it is commonly used to describe category B2 machines by the Government as well as the Scottish Parliament’s Local Government and Regeneration Committee. The Smith commission’s use of the term FOBT is not shorthand for all gaming machines. FOBT machines are located almost exclusively in high street betting shops, and it is on those machines that the recent debate has centred. As such, the Government consider that the intentions of the Smith commission agreement have been delivered and that it is unnecessary to bring other gaming machines, which have far lower stakes and prizes, within the scope of this clause.

I am grateful for the contribution that was made on Amendment 58. As I have said, the Smith commission sought powers to prevent the proliferation of FOBTs, and the Government have interpreted this to mean the ability to restrain any future increase in the number, thus preventing proliferation—and hence the focus on new licences. Amendment 58 would extend this power to include existing licences as well as new ones. In conjunction with the extensive planning powers which have already been devolved, the clause as drafted will give the Scottish Parliament sufficient levers to tackle high street gambling and the extent of FOBT terminals, as Smith envisaged and which is the focus of public debate. The Government’s approach is appropriate and therefore I hope that the amendment will not be pressed.

The noble and learned Lord, Lord Davidson, proposed Amendments 55 and 57, which would allow the Scottish Parliament to include licensing standards officers in Scotland as authorised persons who may exercise inspection and enforcement functions under the Gambling Act 2005. There is already a well-used and straightforward mechanism in Scotland whereby licensing standards

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officers may be authorised persons for the purposes of the inspection and enforcement of functions under the Gambling Act 2005. The Gambling Commission has very helpfully issued guidance on this. Local authorities are already responsible for determining how their existing officers discharge their duties. Clause 49 does not change that. As such, we consider that the amendments are not necessary.

Again, I urge the noble Lord to withdraw his amendment.

Lord Bruce of Bennachie: I am grateful to the Minister. As he will know, these amendments were proposed by the Law Society. While his response has made clear that he believes, in accordance with the Smith commission, that it is giving the power to regulate new licences for high-value machines, it creates a dilemma, which means that some machines in Scotland will be regulated by the Scottish Government and others would still be regulated by the UK Government. Would it not be more sensible to have a single Government, the Scottish Government, responsible for the regulation of all machines rather than have certain machines over which the Scottish Government have power and others which remain with the United Kingdom Government, causing potential confusion and future conflict?

That was the purpose of the amendment. All I ask of the Minister is that he reflects on the fact that, while I understand the reasonings for the amendments—I am happy to withdrawn mine on that basis—he should recognise that this could create an anomaly in the future which might require him to come back with future legislation. There is some logic in doing it all in one rather than having to come back on another date. I beg leave to withdraw the amendment.

Amendment 54 withdrawn.

Amendments 55 to 58 not moved.

Clause 49 agreed.

Clause 50 agreed.

House resumed. Committee to begin again not before 8.52 pm.

Prisons: Education

Question for Short Debate

7.52 pm

Asked by Lord Hanningfield

To ask Her Majesty’s Government what steps they are taking to help improve education standards in United Kingdom prisons.

Lord Hanningfield (Non-Afl): My Lords, I am very grateful for having obtained this short debate on education in prisons. Perhaps I should have added “in England”, but, until I heard some of the Scottish debate, I was not aware that education in prisons is devolved to Scotland and Wales. The noble Lord, Lord German, will speak later and he might tell us a bit about the Wales situation. At the moment, a review is being

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carried out by Dame Coates on education in prisons. It will report later this year and I hope that this short debate might have some influence. I congratulate Reading Ahead and the Prisoners’ Education Trust on all that they do to improve education in prisons. Later this week, there will be a debate in this House on the future of prisons. I hope that this short debate might influence that and that the Minister, when she responds, might be able to say that.

I think that all noble Lords are aware that I have been in prison. I will speak a bit about my experience there. As many will know, I also have lifelong experience in education. I was chairman of Essex Education Services for many years, chairman of the Council of Local Education Authorities and regional chairman for the Further Education Funding Council. After the terrible shock of being sent to prison, I thought that I had better try to do something with myself. I spent a lot of time researching and talking to fellow inmates about how they got there and their own situations. I found that many of the young people—I did not talk much to the older ones—were unable to read and write. I have since been told that the illiteracy rate in prisons is more than 50%. Many people asked me to help them. They brought me letters, particularly solicitors’ letters and legal letters, and other things, and asked me to read them to them and to help them understand what was in them, which I was only too pleased to do.

My experience of education in prison was rather ridiculous. I was initially given a 2+2=4 type test. When I was moved to an open prison, I was given the same test. I said that if possible I would like to improve my IT skills. I thought that I would try to do something. I heard nothing more at all, which was a common experience for many people. Education in prison is outsourced and, if it continues to be outsourced, it needs a different specification of what it can do. Education in prison needs to be brought up the agenda enormously. It is an opportunity missed. If only young people in prison could learn to read and do simple mathematics, that could help them to have a career when they get out.

The life of crime of many young people starts very often with an obsession with fast cars. They start with the minor example of pinching a car but graduate to much more serious crime, including burglaries et cetera. That is why I would like to couple my comments on education in prison with vocational training. A quite sensible young man in prison for a first offence had been obsessed by cars. In an open prison, people do a lot of external work and his main external work had been cutting grass and the like. However, when he was given a placement in a garage to train to repair cars, anyone would think that he had won the lottery. His excitement at going to a garage to learn more about cars for a possible career in that area was absolutely fantastic. That is why I want to couple my comments on improving education in prisons with vocational training. We know that the situation is the same in the outside world. We know that education generally has moved to more vocational training for young people. I hope that all speakers today will talk more in that vein, and about how we can improve education and vocational training in prison. It is right at the bottom of what happens in prison at the moment.

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In an open prison particularly, the inmates do all sorts of things that help to run the prison. I was in a prison on the Isle of Sheppey. It was a quite well-run place and a lot of inmates did a lot of the work in running it. One could use some inmates for some of the training and education in prisons. Instead of just involving them in reception areas and so on, their talents should be used. If we cannot afford to spend more on prison education, perhaps we should rethink what we do in prisons and train a few more people to do more, which would help these young people get somewhere. Education is right at the bottom of the profile in prisons now. I hope that the contributors to the debate will talk a bit more about how we can raise the profile of education and training in prisons.

As noble Lords might imagine, I found my initial days in prison very difficult. I wish I had been able to have this debate before, but noble Lords will understand that it is quite difficult for me to talk about it. I found it extraordinary. For example, general knowledge is absent in a lot of prisoners. Hardly anyone had heard of the House of Lords. I am not really surprised at that, but so many people asked me, for example, where it is and what it does. Someone imagined that every Lord has a castle, because they asked me if they could borrow mine for a rave. It is quite an extraordinary thing.

Some of these people in prison are fairly intelligent and they could have a much better future if only we could do more for them. We need to think about how we can do more in both education and training in prison. I hope that the contributions to the debate will add to that.

8.01 pm

Lord Addington (LD): My Lords, I thank the noble Lord, Lord Hanningfield, for raising this subject from a unique perspective. I first encountered prisoners en masse when I worked for the Apex Trust about a quarter of a century ago. As a severe dyslexic, it was the first time in my entire life that I had found a group where my literacy skills were higher than the average. If noble Lords look at the prison population, they will find every conceivable educational problem they can possibly imagine by the barrel load.

The average prisoner has finished his formalised education before his 14th birthday. I have one wonderful statistic: that 60% of all prisoners in 2009 were discovered to have a reading age below that of a normal five year-old, if there is such a thing. You get every single problem there. People were saying that 50% of the prison population were dyslexic. They discovered that that is wrong: it is only 30%—only three times the average. I am sure that the noble Lord, Lord Ramsbotham, who is sat across the Chamber from me, will say something about speech and language. Language development is incredibly bad among prisoners. If you cannot talk or do not have listening skills, you cannot access the education system properly—you base that on other problems, social problems. The fact that anybody in this group has any literacy skills would be a surprise. We also know that bad education means that you are liable to get into the prison system, and that you cannot indulge in legal economic activity. There is a cycle here that is quite obvious to everybody. We have to do something about it.

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However, when we talk about education, please let us remember, having identified all these difficulties and problems, that sticking prisoners back in a classroom is not going to work. It just isn’t: you do not know it, you cannot react to it. Chalk and talk—the teacher writes something on the blackboard, you write it down —is what I failed at for the first few years of my life. I got away. Some 42% of prisoners were excluded from school permanently. You have to individualise the approach.

The noble Lord, Lord Hanningfield, mentioned the fact that prisoners should be used in education. Some of the most successful education units in prison have been those that use mentoring. I believe that I am patron—I am afraid that one acquires various titles—of the Cascade Foundation, which deals with dyslexia and head injuries. Somebody goes into the prison and talks to and interacts with the prisoners. It means that you can have a conversation with somebody who is not in authority to try to get some sort of relationship and progress. Other programmes such as Toe by Toe, or the updated version, work on a similar system. The two groups argue which one is the best. It does not matter: mentoring helps. You have an interaction with someone who is not in authority and does not represent the thing you have failed at, which has defined your life until this point.

If you do not have somebody in the education system who knows how these problems work and can relate them to an adult, you are guaranteeing failure. We have to get specialists in this field to intervene. I see that my time is up, but I have made my point: standard education practices just do not work.

8.04 pm

Baroness Murphy (CB): My Lords, I have witnessed the transformational impact of a sophisticated education programme in a regional secure unit for mentally disordered offenders, but I also know just how difficult it was to extend the learning from that programme to other, similar units. The problems experienced in regional secure units are quite similar to those experienced in prisons.

I welcome Dame Sally Coates’ review of this area, but the problems she faces are utterly daunting. Many prisoners, as we know, spend most of their day lying on a bed—a criminal waste of human potential and a lost opportunity to improve their lives. Everyone knows that there is good work, but it is very patchy.

I suppose that my first point is to challenge the Ministry of Justice strategy documents that link education, training and work as if education’s sole function is to enable prisoners to find work and rehabilitation. This is an admirable aim, but education is valuable for its own sake—for example, prisoners learning to read and write. As we have heard, about half of prisoners have very little, except basic, education and cannot read and write, so they cannot write a sophisticated letter, for example. It does not really matter what they are learning, as long as they are engaged in it. That is where the points made by the noble Lord, Lord Addington, about the method of engagement are so important.

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My second point is that any serious review will quickly come up against the principal barrier to improvement, which, as I have said, is lack of time spent out of cell. Reduced budgets and staff shortages, coupled with a prison population that shows little sign of falling, conspire to make it difficult for many prisons to offer meaningful education or work. There is also the perennial problem that what prison management wants and what prison officers make it possible actually to deliver may be far apart. Winning the hearts and minds of prison officers is crucial to make education a reality. The Prisoners’ Education Trust and the Prisoners Learning Alliance have told us the detail of what is required, but solving this problem will require much more radical action that addresses high prison numbers.

The idiotic introduction of advanced learning loans has wiped out many of the advanced level 3 courses that used to be available to prisoners. It is crazy to apply a loans policy to prisoners to support parity with learners in the wider education system. Prisoners are at such a disadvantage, as we have already heard. The benefits of prisoners gaining higher-level qualifications far outweighs the cost, whether it contributes to their rehabilitation or not.

Finally, we need to change the incentives in prisons for prisoners to take learning seriously. If they are paid more to do menial work, then they will take that modern option of sewing mailbags, rather than learning.

8.08 pm

The Lord Bishop of Derby: My Lords, I, too, thank the noble Lord, Lord Hanningfield, for his introduction to the debate, especially for linking education with vocation for people in prison. As the noble Lord, Lord Addington, said, it is a very complex territory with very deep needs. A lot of research shows that the prison population represents people with multiple needs. Therefore, the task of education and vocation will be challenging.

I see the importance of formal education for literacy and numeracy to help people to get jobs. I am all in favour of that, but I want to look behind that at the informal fashioning of vocation and the development of character and confidence, which allows people to enter formal learning. I will draw on my own experience of going into prisons.

I will describe three little pictures. The first is a very moving experience of working with a group of women in a women’s prison, exploring with them how important they came to realise the value of structure and pattern was in their lives. Many had come from contexts where there was no structure or pattern at all, just a lot of chaos. The opportunity to think carefully about how people could better live together with the aid of some kind of structure, framework and pattern was very valuable.

I think of another experience that I had recently of taking services in a prison with quite a lot of girls and young women, a lot of whom are loners and have problems with drugs. Nevertheless, they have formed a choir to sing in those services. They love modern music and have become a community. Suddenly, they became confident and acquired an identity through doing something creative and good together. We need to ensure that those kind of opportunities are available.

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I come to my third little picture. A number of people in my diocese, myself included, go into prisons and conduct Bible studies and discussion groups. People need space to reflect on their experiences, their stories, the value of patterns and the making of communities through informal activities such as singing in a choir.

Chaplaincy provides a very valuable space in prisons. I hope that the Minister will think about the role of the informal sector in giving people a chance to reflect, grow in a community, appreciate how to make connections and therefore gain the confidence in their vocation to tackle the formal learning that they will need for the world of work.

8.10 pm

Viscount Hailsham (Con): My Lords, the noble Lord, Lord Hanningfield, is to be congratulated on bringing this matter to the attention of your Lordships’ House. It cannot have been that easy for him, but it is right that it should be brought to the attention of the public through this House. My experience is not as direct as the noble Lord’s, but it is none the less extensive. I was the Prisons Minister at the end of the 1980s, for most of my professional life I have practised at the criminal Bar and, until very recently, I was a member of the independent monitoring board of a local prison.

In a debate of this kind, one has to content oneself with assertions rather than argumentation. I am sorry about that. My assertions will be brief. First, the punishment imposed on a prisoner is the deprivation of liberty and we should be very careful about heaping on prisoners loss or humiliation which is not a necessary incident of that.

Secondly, most prisoners will be released into the community, and it is in our collective interest that they do not resume their criminal ways. Unfortunately, far too many do. One reason for that is that far too many have very limited personal or educational skills. The noble Lord, Lord Hanningfield, spoke about that and he is entirely right. Illiteracy, lack of IT skills, innumeracy, the inability to hold down long-term work—all these make a serious contribution to people’s inability to get work.

The purpose of the criminal law is in part to provide for a process of rehabilitation. We do not perform that role very well, but it is part of the purpose—namely, to provide an opportunity for prisoners to have their deficiencies addressed. Therefore, I wholly agree with the proposition that we need to be much more generous in our provision of out-of-cell engagement and education. Whether that involves developing vocational skills, numeracy, literacy or IT skills, these need to be addressed.

Finally, the Secretary of State for Justice has a strategy to reduce the number of prisoners. That is a jolly good thing, too. When I was Prisons Minister, the number was about 40,000; it is now over 80,000, and I am deeply disturbed by that. If we can reduce prisoner numbers, there will be a saving. Inevitably, the Treasury will snaffle some of that, but there might be a portion left. I think it would be the will of this House that some portion of that should go to a more generous provision of out-of-cell activity, and in particular to education.

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8.17 pm

Lord Judd (Lab): My Lords, I thank the noble Lord, Lord Hanningfield, most warmly for introducing this debate, for talking with candour about his direct personal experience of what he encountered, and for bringing all that front-line insight into our midst in the House of Lords.

It seems to me that for both economic and, indeed, humanitarian reasons the overriding objective in any relevant and effective penal policy is rehabilitation—it must be. The objective is to try to ensure that as many as possible of those incarcerated can become full positive citizens. How on earth is it conceivable that people can begin to take the road to full citizenship and making a practical contribution to society if they are operating without even minimal education?

However, there is another reason that this is important. So many of those in prison—we do not talk about this honestly enough or frequently enough—are themselves victims and casualties of brutal lives. They have not begun to have the opportunities that we take for granted of being able to enjoy literature and the rest. The point made about the importance of education as an end in itself is terribly important because education is central to people being able to live any kind of full life.

I have mentioned in the House before that for some nine years I had the privilege of being the president of YMCA England. I became fascinated with the work being done with young offenders and used to try to look at it as often as I could. If any of us had experienced just a fraction of what these youngsters have often experienced in their lives, it would be a miracle if we were not in trouble and probably facing imprisonment. It is important to recognise that reality. However, the next thing I discovered was how keen so many of them were to educate themselves. Yes, practical skills matter, but so does education in its own right. They began to see this dimension of life which they had not begun to be able to see before.

I finish on this note: none of this will come cheaply. If it is to be done properly, it must be properly resourced with staff and physical resources. That is not the case at the moment. It does not begin to be the case, and we must face that.

Finally, so far as the future is concerned, I hope that we can make a commitment to rehabilitation in the culture of prison staff and operatives top of our priority lists. It is there in many places but not throughout the Prison Service. That must be our first priority.

8.17 pm

Lord German (LD): My Lords, I also thank the noble Lord, Lord Hanningfield, for introducing this debate, and in an obviously personal manner. The holy grail in offender rehabilitation is an holistic approach which looks at both sides of the prison gate: a structure where education, housing support, skill acquisition, work and lots more issues are regarded as a single matter to be handled properly. Obviously—and unfortunately for us—the holy grail has not yet been reached and this debate offers an opportunity to look at one very specific aspect of that failure.

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I welcome the Coates review and wish it well. In the past, it has been fairly difficult to fully assess the value of prison education and its impact on reducing reoffending, though we have much anecdotal evidence. However we now have the Ministry of Justice’s Data Lab analysis of reoffending, published last September, which gives an analysis of 6,000 prisoner records associated with matched comparison groups where one group had received Prisoners’ Education Trust grants. Wherever you look at that evidence, whichever subgroup of prisoners you look at, the clear overall picture was that reoffending was one quarter less among those who had had that special educational support. Reoffending rates were down in every subgroup which was measured.

With those results in mind, I would like to press the Minister to give an indication of the actual cash saving which education, in that context, would mean to the taxpayers of this country. We all know the figures for less police time spent and fewer costs to the prison service, but now we have some actual hard evidence of the level of reoffending reduction that occurs through giving education. It is important to understand the savings that that would generate—and has generated—for the taxpayer, because that is one way of proving that more needs to be invested in this area.

Much has been said about the need for and the nature of prison education and the potential to attract high-quality professionals, and I understand that this is one of the issues to emerge from the Coates review. I want to press the Minister on the nature of the skills and qualifications which are offered to prisoners. Many of the vocational skills require people to have on-the-job training if they are to get a qualification. For many skills, such as bricklaying, plastering, plumbing and electrical work, that cannot occur inside prison and the qualifications people get need to pass through that gate and be continued outside. This is a plea for having a system where there is continuity between outside and inside the gate.

Dame Sally Coates has said that one of her emerging outcomes is that through-the-gate progression and tracking need to be improved. That is an understatement, because the problem lies wholly in bringing those together. It is more difficult now, with devolution, because responsibility for the education process in Wales lies with the Welsh Government but processes in prison lie with the Ministry of Justice. If this is going to happen, and we are to achieve that holy grail, there has to be a radical rethink of the role and variety of the different organisations and structures which manage this process.

8.21 pm

Lord Ramsbotham (CB): My Lords, in thanking the noble Lord, Lord Hanningfield, for initiating this debate, and declaring my interests as co-chair of the Penal Affairs All-Party Group, which incorporated the now defunct prison education group, and as patron of the Prisoners’ Education Trust, I realise that the Secretary of State for Justice has initiated a review of prison education, as other noble Lords have said, chaired by Dame Sally Coates, which has not yet reported. She is addressing the penal affairs group on 23 February.

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When I was Chief Inspector of Prisons, I quickly became aware that education was the most important ingredient of successful rehabilitation, and therefore, by implication, reduction in reoffending. However, at that time, the Prison Service funded its own education, individual prison governors being allowed to make cuts in spending without any checks or balances, resulting in the most appalling imbalance between individual prisons in what was available per prisoner per year: £406 per young offender in Brinsford, £1,750 in Werrington in the same county, and £2,500 in Thorn Cross in Cheshire, for example. I therefore campaigned for the Department for Education to become involved, and for ring- fenced funding of a national syllabus for each type of prison, including academic, vocational and social skills education, speech, language and communication training and, not least, access to the arts. There resulted the competitive awarding to individual education providers of offender learning and skills service contracts, of which there have been four exercises in the past 10 years, with a fifth postponed from last year to this. This frequency has precluded long-term investment and caused avoidable instability, and I hope that the next contract letting will be delayed for yet another year to allow advantage to be taken of whatever Dame Sally Coates recommends.

Despite the importance of education, in view of the lack in recent years of educational proficiency of too many prisoners, of all ages and both genders, in addition to the instability of the contracting process, successive Governments have tinkered and micromanaged, rather than allowing individual heads of learning and skills to concentrate on improving local delivery. This has been compounded by cutting resources, not least the numbers of prison staff, who are needed to escort prisoners to and from classes.

I hope therefore that the Minister, in answering the Question posed by the noble Lord, Lord Hanningfield, will tell the House that in his plans for giving more autonomy to prison governors, the Secretary of State intends to furnish them with long-term educational contracts, which will enable local contractors to deliver educational training that is appropriate for prisoners from a particular part of the country, biased in favour of giving them the skills that will help them obtain employment on release.

8.25 pm

The Lord Bishop of Peterborough: My Lords, I, too, am grateful for this debate. I also note with great pleasure a number of changes made to policy and practice in this area by Mr Gove since he became Secretary of State. I gladly thank him and the Government, particularly for allowing prisoners greater and easier access to books. But if educational standards in prisons are to be improved, as they desperately need to be, we still need much more joined-up thinking. I will give two examples.

The first I discovered on a visit I made to a prison during the coalition Government, although I suspect it could just as well have been today. I visited a very impressive unit which trained female prisoners in catering, giving them a range of skills needed for working in that sector. One prisoner told me that she was close to completing a course which would lead to a nationally recognised qualification but that she would not be able

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to complete it because she had just been given very short notice of being moved to another prison. I asked her if she would like me to say something to those in authority, to which she replied, “Thank you, but don’t bother. We expect this. It’s just the way the system treats us”. The system should not treat prisoners or anyone else in that way. We talk about a patient-centred NHS. What about a prisoner-centred Prison Service, not least as regards education and equipping for outside life?