Today I hosted the launch by Crisis of an excellent report on the obstacles to renting privately for people who are on low incomes or have been homeless. We heard how few landlords now accept anyone in receipt of housing benefit. Indeed, 82% of landlords said they were not willing to house those who are homeless or about to become homeless. Many people face enormous difficulties in getting a rented home, quite outside the considerations of right to rent. Ministers have promised to continue to monitor the position in relation to discrimination in particular.

Bearing in mind that the right to rent was introduced in 2014 and that, after evaluating a pilot that did not demonstrate any insuperable problems, negative impacts from this measure have been addressed by Home Office Ministers and officials as conscientiously as could be hoped for, I cannot conclude that the rollout of the right to rent should be the subject of that most draconian of measures possible in your Lordships’ House, a fatal Motion of annulment.

Baroness Lister of Burtersett (Lab): My Lords, I have opposed these provisions from the outset, primarily because of the potential to increase discrimination in the housing market, but what is at issue now is whether full rollout of the scheme at this stage is consistent with the commitments made in both your Lordships’ House and the other place during the passage of the Immigration Act 2014. Like many other noble Lords who have spoken, I believe it is not.

24 Feb 2016 : Column 344

The noble Lord, Lord Taylor of Holbeach, said then that the Government’s intention was that the provision would be,

“subject to a phased implementation on a geographical basis. This will allow a proper evaluation of the scheme to ensure that it delivers its objectives without unintended consequences such as discrimination”.—[

Official Report

, 10/3/14; col. 1648.]

Later, he promised a “carefully phased” approach to the implementation. I am sure I am not the only Member of your Lordships’ House who understood that to mean that there would be a series of pilots in different geographical areas and of different kinds to get a representative picture of its effects—not that it would forge ahead, after a single phase in a single geographical area, involving a quick and not completely representative pilot, with no proper public debate about what we have learned from it and just some changes to the code of practice, which ILPA argues,

“do not appear to constitute a substantive response to the concerns identified in the evaluation”.

I believe that sufficient concerns were raised to cause us to pause rather than steam ahead regardless, as urged also by the Residential Landlords Association on the basis of research that it has carried out. The only reason that we are having this debate is because of the Motions in front of us.

I have the greatest respect for the noble Lord, Lord Best, so what I am about to say is in no way casting aspersions on his role. I am sure that he will have brought the greatest integrity and expertise to overseeing the pilot scheme, but forgive me if I am cynical. A number of noble Lords have referred to this already but when the Prime Minister declared in May, five months before publication of the conclusions of all the hard work that went into the pilot,

“now we’ve got a majority, we will roll it out nationwide”,

surely it rather gave the game away. It suggested that the pilot would turn into something of a charade. It was as if all that important and serious work did not matter because a decision had already been made that it should be rolled out. All right, there have been some improvements to the code of practice but they do not amount to an awful lot.

9 pm

Perhaps what is happening is not quite as incomprehensible as the noble Lord, Lord Deben, argued in his powerful demolition of the policy in Committee on the current immigration Bill which, as my noble friend has said, makes matters worse by introducing criminal sanctions. During our debate in Committee, I asked the Minister what view the Government take of the evaluation carried out by the Joint Council for the Welfare of Immigrants, which we have already heard about and which,

“uncovered a number of worrying direct and indirect impacts of”,

the right to rent checks on tenants and landlords. For example, two-thirds of landlords in the survey stated that,

“they would be less likely to rent to someone who required a little time to provide documentation”,

while more than a quarter said that,

“they would be less likely to open discussions with someone who ‘had a name which doesn’t sound British’ or ‘had a foreign accent’”.

24 Feb 2016 : Column 345

I accept that it was quite late then but as the Minister did not respond, I would appreciate it if he could do so now.

Would the Minister also care to comment on the Residential Landlords Association’s survey of nearly 1,500 landlords, which found that 45% said that they would rent out properties only to those who could provide the required documentation immediately when asking for a new tenancy and found that the great majority, as we have already heard, were totally unprepared?

Another issue raised in Committee by the noble Lord, Lord Deben, was that of the impact on lodgers. The noble Lord, Lord Best, referred to this. The noble Lord, Lord Deben, pointed to the lack of evidence about how the right to rent is working with this group. I raised this issue during the passage of the Immigration Act 2014, with specific reference to those taking in lodgers as a means of trying to cope with the bedroom tax. I know that these are few in number but as people become more aware of their responsibilities under this legislation, I cannot think of a greater disincentive to take in a lodger.

Of particular concern here are asylum seekers who rent a room in a private house rather than Home Office accommodation. This issue was raised during the passage of the 2014 Bill by the late Lord Avebury. I pay tribute to him as an indefatigable champion of the human rights of the most marginalised groups in our society. He is sadly missed when it comes to debates such as these, so all that I can do is to quote from him. He asked then:

“Can my noble friend elucidate what provisions are being made for documents to be produced by those who are occupying rooms in private houses because they are not covered by the provisions of Schedule 3, to which he has referred? They deal only with the accommodation that is provided to most asylum seekers under the 1999 Act when they cannot afford to pay for accommodation of their own. However, there is still an important residual group of people who find space in private houses. They will need documentary proof that they are allowed to live in those houses and thus ensure that landlords are not breaching the conditions by taking them in”.—[Official Report, 12/3/14, col. 1800.]

As ILPA explained, the problem arises because the definitions in the Act work on the basis of having leave whereas most asylum seekers are on temporary admission. The then Minister said that the Home Office will provide the necessary documentation to show that they have a right to accommodation but, according to ILPA, the Home Office subsequently declined to do so, requiring landlords and landladies to phone a helpline. Given that on the face of it the evidence will suggest that there is no right to rent, why would they bother?

The JCWI has already been made aware of an asylum-seeking family with a young child who have been unable to access private rented accommodation because of confusion over the right to rent. They were forced in the end to live in a hotel instead. The JCWI argues that a clear policy is vital in order to ensure that these individuals, who cannot be removed from the UK and who may, in some instances, have the right to rent, are not disadvantaged and rendered homeless as a result.

24 Feb 2016 : Column 346

I make a plea to the Minister to look into this issue, involving a small group, but a particularly vulnerable one. Could he come back to us, on Report on the current Bill, with what steps the Home Office will take to provide the safeguards promised by James Brokenshire in the Commons on the last immigration Bill for those who fall through the cracks of the right to rent scheme in this way? It is already being rolled out, but we must have this sorted.

Much as I dislike this scheme and would like to see the back of it, I do not believe we have sufficient evidence yet from piloting either to abandon it now or to roll it out nationally. As the Residential Landlords Association argues, on the basis of a whole lot of evidence, a pause would be the sensible and responsible approach at this stage. I believe the Government should stick to their promise of a phased, geographical evaluation, and there should be a proper debate in both Houses as to what the lessons are in terms of its effectiveness in meeting the Government’s objectives and any unintended consequences, particularly as regards discrimination. As it is, we can only conclude that despite the serious efforts put into the pilot by the noble Lord, Lord Best, and others, the Government are determined to roll it out nationwide regardless, as the Prime Minister made clear in his immigration speech in May.

Viscount Hailsham (Con): My Lords, I am not going to support the fatal Motion, but I have a great deal of sympathy with the underlying thoughts behind it. I begin by declaring an interest: I am a small landlord and have rented property—in fact, three properties—for some 20 years, and therefore come with a degree of personal experience of the problems that landlords face when confronted by prospective tenants. I want to make only four points.

First, I endorse what the noble Earl, Lord Cathcart, said with regard to the lack of knowledge. My knowledge of these requirements has come from being a Member of this House. I have not received, from the Home Office or from anywhere else for that matter, any detailed information regarding a landlord’s obligations, and I share the reservations expressed by the noble Earl.

Secondly, it is very difficult for landlords—and, incidentally, for people employing dailies as well—to interpret the documents that prospective tenants or employees produce. Very often we are told that the relevant documents are with solicitors; very often, the prospective tenant or employee has very limited language skills. It is often very difficult to determine whether or not somebody has a residential entitlement of the kind contemplated by the Home Office.

Thirdly, landlords like rapid reletting. They do not like voids; they like certainty. If they have any doubt about when or whom, or about the identity or legitimacy of a tenant, they will go for the safe option. Surprise, surprise—that will have a discriminatory consequence; that is a certainty.

Fourthly, and with utmost deference to the noble Lord, Lord Best, should we trust the discretion of the CPS? There is one fundamental rule that this House and the other place need to bear in mind: if you give a discretion to an official, it will be abused. My general

24 Feb 2016 : Column 347

principle is to give as little discretion to officials as possible. The CPS can come along and say, “We will exercise our discretion; we will be moderate and careful”. Some of them will, but many will not. I have a great deal of sympathy with the views expressed by the noble Baroness.

Baroness Ludford (LD): My Lords, I agree with everything that the noble Viscount, Lord Hailsham, said. I also agreed with everything that the noble Lord, Lord Rosser, said. He delivered forcefully and vigorously his strong objections to the scheme going ahead without fuller evaluation. I have to say that I felt that his outrage is synthetic if Labour will not join the Liberal Democrats in voting for my noble friend’s fatal Motion. It has no effect; it is just outrage without action.

The checking requirement is not expected to be onerous—that was a comment in the Government’s Explanatory Memorandum or some guidance document. Elsewhere, they state that a landlord or agent can carry out simple document checks—simple document checks. We have already heard that in fact they will have to refer to the Home Office and wait a couple of days. As the noble Viscount pointed out, landlords do not want to wait: they do not want voids. Tenants will lose the chance of the property. It is a particularly unfair responsibility on small landlords to have to check documents. The noble Lord, Lord Best, said that it was straightforward to do that checking, but that is absolutely not the case.

The judgment in the recent Ryanair case has been mentioned. The judge who found in favour of the airline said that its staff could not be expected to spot cleverly forged passports that even trained immigration officers found hard to detect.

Interesting evidence was given to the committee in the other place by Tony Smith, former director-general of the UK Border Force. He said that when he was regional director of UKBA, his enforcement teams,

“uncovered a significant number of ‘forgery factories’ in London who were manufacturing fake EEA identity cards … mainly being sold to migrants from non EEA countries who were working illegally in the UK. Although these documents would likely be identified as fraudulent at the border”—

there is no guarantee—

“they are usually sufficient to pass the ‘reasonably apparent’ test to an employer. The same is likely to apply to the implementation of landlord sanctions”.

So a former Border Force director says that the number of forgeries in circulation makes it extremely difficult, even for immigration officers. He wrote:

“Although the EU Council has called on all Member States to adopt common designs and security features”,

for identity cards for a decade,

“not all EEA countries have done so”.

Of course, the UK does not have a permanent resident card for foreign nationals with indefinite leave to remain, equivalent to the US green card, so there is no one document.

Even as a Member of the European Parliament, I was dealing with quite a lot of immigration cases, and people would often turn up with a whole batch of letters from the Home Office which apparently attested

24 Feb 2016 : Column 348

to their immigration status. I was completely unequipped to work out what they all meant. There was a set of different stamps and letters, instead of one simple document. To put this onus on landlords is not appropriate.

I also do not understand what is apparently regarded as the concession of allowing expired biometric residence documents and immigration status documents to be recognised. How is a landlord to know which expired documents can be relied on and which cannot? Perhaps the Minister can give us an answer to that.

I noticed something in the Financial Times a few months ago that reminded me that a landlord must identify all adult occupiers who will use the property as their main home, whether or not they are named in the tenancy agreement. The columnist wrote that, “Nosiness may be necessary”, to inquire who else is going to live in the property who is not in the tenancy agreement. The column also recommended that you may,

“need to pay for a professional opinion”,

which all raises the cost that will no doubt be passed on in the rent. Noble Lords opposite have made the point about how they only know about these requirements from being Members of this House. Obviously, not all landlords are Members of this House. There has been a suggestion that the dissemination of information will largely rely on electronic media and people knowing where to seek out the information. The Residential Landlords Association made the point that 90% said that they had not received any information from the Government either by email, from an advert, from a leaflet or from the internet, and 72% did not understand their obligations under the policy.

9.15 pm

It seems entirely clear that this is not ready to roll, and that the impact on landlords and potential local authorities who might have to pick up homelessness cases as well as on tenants—with the very obvious point about the potential for discrimination—make a much fuller evaluation essential. I therefore strongly support the Motion put forward by my noble friend.

I would just add that, if this proposal come from the European Union, there would have been uproar. At the idea that this amount of bureaucracy and red tape was being put on landlords, with the potential for discrimination, everybody in this House would have fallen on it, torn it apart and, hopefully, voted against it.

Baroness Gardner of Parkes (Con): My Lords, my interest as a small landlord is on the register. Like the noble Viscount, Lord Hailsham, I have let properties in a small way for a very long time, probably 40 to 50 years, starting with the basement of a house that I lived in. It is unfortunate that this clause comes in an immigration rather than a housing Bill, where so many of these issues are addressed and more is known about the real problems involved.

A pilot evaluation as proposed by the noble Baroness, Lady Hamwee, is at least desirable and even essential. Like others on this side of the House, I shall not vote in favour of her Motion, but I want to make an input

24 Feb 2016 : Column 349

on the subject. Checks on tenants all sound very desirable, and I have always had checks on them, but I cannot tell noble Lords how difficult it is becoming. Nowadays people either want to hide their identity for some illegal reason of their own or they simply do not even know how to produce identification. I have had a very charming and completely reliable girl take a small flat that I had. The previous tenants were expecting a child and needed more space, so they moved out. She wanted to come, but to try to get any suitable identification and proof that she was actually going to the university here that she claimed to be going to took over six weeks. As the noble Viscount, Lord Hailsham, said, six weeks’ loss of rent to a landlord is quite a lot of money and certainly pushes the rent up for the next person who comes along, because you have to compensate for the money that you have lost in that period. In the end, we had to get a letter from her embassy to prove that she really was legitimate.

I was quite fussy about this because we had at least six people presenting themselves to take that flat who were definitely not what they said they were and wanted it for illegal purposes. Other flats in the block have been let out on an Airbnb basis; the council used to be able at least to find out who was living in those flats. They were bussing in 10 people at a time for two weeks’ holiday. They came into a one-bedroom flat, which was not allowed to be sublet. In the end, the whole thing was sorted out in terms of those units, but the same people who had successfully run that—the court demanded that they give up that illegal subletting—were putting up front men to ask for my flat so they could do the same thing there. It is so very hard to detect these cases, and it takes a lot of time and consideration.

When residential landlords are given the responsibility to check immigration things, it will be a bit like the National Health Service. We are meant to check on who is entitled to national health treatment, but people do not have the time or ability to access the information and a tremendous lot of health tourists come here for that reason.

What are reasonable requirements? I can understand that it would be easy if we had national identity cards, although I have never really been in favour of them. Then, at least we would know whether someone was genuinely in the country, and that would cover one little thing, but that is not enough. For us to have passed the Deregulation Act, taking away the controls on people subletting or letting on short tenancies, at a time when New York and Paris were introducing such regulations was insane, but there is nothing we can do about it.

The point that this does not address at all is illegal landlords. Legal landlords are doing their best to abide by whatever the law is, but I know so many people who have a room in a house that is divided into six or eight rooms. You are meant to have a certificate if it is a house in multiple occupation and to know who is in it. Instead, these people are let rooms with no rent book or security, with nothing at all. In one case, someone has asked me to help. She is very concerned because someone has a key to her door and comes in and steals her things, yet she is told by the

24 Feb 2016 : Column 350

landlord that if she goes to the police, he will put her out instantly. That sounds unbelievable, but it is absolutely true. There will be at least six people living in a house where the landlord does not declare that he has anyone. I do not think he pays any income tax or anything else. The more we put greater and greater demands on legitimate landlords which are almost impossible to satisfy, the more we are going to push the enterprise underground. That is a very undesirable situation, and we do not want to see it.

I understand that the question of discrimination might be why this provision has been put into the Immigration Bill, but I am not involved in that Bill and I had not realised that it had housing implications. I am very impressed by the work being done by a lot of people, such as the noble Lord, Lord Best, who is a real expert on this matter. The noble Lord, Lord Rosser, said that there should be no further action before there has been a full consultation and evaluation, and the Liberal Members said the same thing.

It must be remembered that this is making it a criminal offence for landlords. It is not turning it into some light-hearted thing that will be dismissed. They say that you will be able to ring a helpline but, from my national health experience, I do not have a huge amount of faith in helplines. Every day in the paper there is a story about something that has gone wrong with a helpline. Why do we think a helpline would be any better manned or more efficient in this field than they are in other fields? Human nature is able to cope with only a certain amount, and most people staffing helplines have a list of questions and answers beside them. If you do not fit into that pattern, they might not be able to give you the appropriate answer because the question is not one that they have been given an answer to.

The Government need to make the situation much clearer to landlords. I think it is true that people have not have any notice about this—I certainly have not. The same applied over carbon monoxide monitors; the measure was introduced with two weeks’ notice and no one was told anything about it. It is no good asking people to follow a law without them having any idea that it is coming in. It is only through the National Landlords Association that I have come about this knowledge at all.

This is an important issue. I feel that it could go disastrously wrong, and it would be far better for it to be fully evaluated and dealt with perhaps in the housing Bill rather than in the Immigration Bill.

The Minister of State, Home Office (Lord Bates) (Con): My Lords, I thank all those who have spoken in this debate. I begin by putting on record that my wife is a small-scale private sector landlord; I want to draw that to the attention of the House.

In considering these matters, I draw your Lordships’ attention to the fact that we had a substantial debate on this issue on 20 January on Amendment 148 to Clause 13, which was from, as I recall, the noble Baroness, Lady Hamwee. That went on for some time and raised many of the issues that have been raised today. If, because of the hour, I touch on a number of the issues lightly as we go through, I think it will be

24 Feb 2016 : Column 351

helpful for those who have genuine concerns about this to look again at the

Official Report

for the second day of Committee, and I am sure we will have the opportunity to revisit this on day one of Report on 9 March. For those reasons, I trust that the House will bear with me if I try to deal with some of the headline issues that perhaps have not been raised before.

First, I shall deal with the context of this measure. The context to legislation is very important. This is a commencement order, Commencement Order No. 6, for a piece of legislation that was passed by the coalition Government. The changes about which many concerns have been raised relate to the Immigration Bill currently going through your Lordships’ House but this relates firmly to the Act that was passed by the coalition Government.

It has to be said that the notion that landlords should have a duty to check that those to whom they rent properties are legally entitled to be here was first introduced by the then Labour Government in the Immigration and Asylum Act 1999, which introduced a duty on social landlords to undertake checks to ensure that they were letting properties only to people who had a legal right to be here. This measure simply extends that further across.

We are of course talking here about human beings and I think that we all recognise the humanity of this, but we are also talking about real problems that are faced in this country. We talk constantly about pressures in the housing market, and it could be that part of that pressure is because a number of properties in the private rented sector are currently rented out to people who have no legal right to be here, which means that they are here illegally and therefore breaking our laws. The question is: should we as a Government, and indeed as a Parliament, be endorsing and basically offering protection to people with no legal right to be here, who are breaking our laws and abusing our hospitality and should leave, to the potential disadvantage of people who are legally here and entitled to rent a property? That is the first point.

The second point, to which a number of issues relate, is on the timing, and I recognise that that is a key point. The original announcement about the pilot exercise was in September 2014—I am looking at the noble Lord, Lord Best—and the original pilot or phased introduction was undertaken some time ago. I readily accept that it was undertaken as a concession to arguments made, not least by the noble Lord, Lord Best, in the various stages during the passage of the Immigration Act through your Lordships’ House. The pilot was set up in the West Midlands, which is the second largest conurbation in the UK and quite an ethnically diverse area. It was therefore deemed to be an appropriate setting in which to test out how this would work. On top of that, an independent panel was set up, which of course the noble Lord, Lord Best, co-chairs. The panel includes representatives from the British Property Federation, the Residential Landlords Association, which has been referred to, the National Approved Letting Scheme, the UK Association of Letting Agents, the Association of Residential Letting Agents, the Royal Institution of Chartered Surveyors and the National Housing Federation. It also includes

24 Feb 2016 : Column 352

Shelter, Crisis, Universities UK and, crucially, on the element of discrimination, the Equality and Human Rights Commission.

Why, then, was the decision taken to do this—a point which the noble Lord, Lord Rosser, rightly sought clarification on? The answer is that it was in the Conservative Party manifesto. We stood at the election and our manifesto said that we would clamp down on people who are here illegally to stop them being able to work, rent properties, open bank accounts and obtain driving licences. We said that we would do all those things. Therefore, when we were elected by the people to do that, we announced that we would get on and do it. This is not happening across the country, to take the point made by the noble Baroness, Lady Lister. We introduced it in the West Midlands and that pilot has now been running for over a year, during which we have been gathering the evidence of how it has been operating and evaluating it. This order will enable it to be rolled out to the rest of England but of course then further orders will be required for it to be rolled out into Scotland, Wales and Northern Ireland.

On the timing, I took on board the points that were made by my noble friends Lady Gardiner, Lord Hailsham and Lord Cathcart, among others, who were concerned about the time it takes to get documents. That is why a lot of this information can be checked online: there is an online checking service, which is not a premium service, as we said the previous time we discussed this, but a local-rate number that people can ring up. At the moment, that government service delivers 100% as regards its target time, turning work around in 48 hours. I know that of course when people obtain references at present when a landlord lets out a property, surely they want to establish who they are letting out the property to. They require some identification and may require proof of employment, a reference from the employer or from previous landlords. All of that takes time. This part simply checks that the person who is there is legally entitled to be in the UK, and I would have thought that that would be a standard part of due diligence that should be happening in most cases. Therefore that element is there.

I recognise that we all have a deep concern about discrimination in the housing market. That was one of the reasons why the mystery shopping exercise happened there. That sounds like a trivial thing, but it is an established procedure used by all retailers around the country. We used an external firm to undertake the exercise and half the visits were undertaken by BME couples, who were seeking accommodation. What they identified was, sadly, that there is still discrimination— that we know—but that the discrimination levels experienced in the West Midlands control area or pilot area were similar to the other areas being used as a comparator. That is why we have to make sure that landlords are more aware of the duties that they already have under the Equalities Act 2010 and the racial discrimination Act of 1965 to ensure that there is no discrimination.

The discrimination point is a key area. We are determined to go much further on this and I know that the independent panel is keen to do that as well.

24 Feb 2016 : Column 353

That is why we are updating the code of practice to ensure that landlords know their duties and obligations to ensure that properties are fairly let to people, irrespective of their background. We have done that with great assistance from the Equality and Human Rights Commission, which of course is part of that panel.

A number of noble Lords referred to asylum seekers and refugees. The legislation exempts refuges, hostels and student accommodation, and, where there are vulnerable people who may have lost documents and what have you, there are special procedures to ensure that they are protected.

The target of this legislation is two groups of people. The first group is those who have no right to be here and should leave, and therefore should not be occupying premises that should be made available to people who have a legal right to be here. The second group, as the noble Lord, Lord Best, was right to point out, are the unscrupulous landlords who charge extortionate rents for appalling accommodation—I have seen reports on that type of accommodation that people are actually living in. These are the people we have in our sights. All a landlord needs to do is undertake a basic check of the documents and keep a copy of them. They then have a statutory defence that they have complied with the law.

A number of very specific points were raised. Perhaps, if the House will allow me, I can undertake to cover those in communications. We are having ongoing conversations about this: we have had several meetings at the Home Office and other meetings. We are going to come back to this. There are some areas where I think we can get some movement to make sure that there is greater reassurance. However, this particular element relates to legislation from 2014 for which there has been a pilot and a phased introduction. We are confident that the safeguards are in place, but it will continue to be kept under review. Therefore, I commend the commencement order to the House and urge the noble Baroness to reconsider pressing her fatal Motion.

Baroness Hamwee: My Lords, I am conscious of time. I hope that in my opening speech I managed to anticipate many of the points that have been made in the debate, and I shall not seek to repeat them. What I had not anticipated was hearing the real-life experiences of three landlords on the Benches opposite. I thought it was very telling when they shared with the House that they became aware of the requirements through their membership of the House. Their talk of real experiences reminded us of the concern of landlords about voids and losing rents, and the inevitable and unintended discrimination that may occur because of the situation.

It is right that I respond briefly to the noble Lord, Lord Best. No one could doubt the work that he has put in to this or that the panel that he co-chairs takes the issue very seriously. However, the Home Office evaluation, which took place some time ago, demonstrated many of the problems. The panel continues to work but we do not know publicly what its conclusions are and what its continuing work is. Perhaps I may summarise the noble Lord’s view as being that the burden on

24 Feb 2016 : Column 354

landlords was exaggerated. The Residential Landlords Association has made its views quite clear and it supports the Motion.

The pilot was introduced as a result of negotiations between the partners in the coalition Government in 2014. That negotiation was the basis of the inclusion of the provisions in the Bill at that time. Several noble Lords have quoted the assurances that were given about the evaluation. We were told that there would be a proper one based on a big enough trial. The then Minister said:

“Any decisions on a wider rollout will be taken in the light of the evaluation after the general election during the next Parliament”.—[Official Report, 3/4/14; col. 1090.]

However, the decision was taken immediately after the election before the pilot had even been completed.

I agree that immigration legislation should not be used to crack down on bad landlords. We should use other means for that. Nor do I think that we should lay problems in the housing market at the door of illegal immigrants. Hardly a cigarette paper can be put between the points that I made and those made by the noble Lord, Lord Rosser, who I think used even stronger language than I did, but I think that his argument is, “We shouldn’t behave badly. We should accept that this is policy but ask the Government to think about it all again”. However, if we cannot ask the Government to think about it on the basis of a pilot on which there has been a report, and if we cannot amend the order, how do we do our job? I think that our job is to show our view of the position so far, which is, as I said, that the requirements should not have been rolled out beyond an inadequate pilot. I wish to test the opinion of the House.

9.42 pm

Division on Baroness Hamwee's Motion

Contents 54; Not-Contents 139.

Motion disagreed.

Division No.  2


Addington, L.

Bakewell of Hardington Mandeville, B.

Barker, B.

Beith, L.

Benjamin, B.

Bowles of Berkhamsted, B.

Bruce of Bennachie, L.

Campbell of Pittenweem, L.

Carlile of Berriew, L.

Cotter, L.

Doocey, B.

Featherstone, B.

Foster of Bath, L.

Garden of Frognal, B.

German, L.

Glasgow, E.

Grender, B.

Hamwee, B.

Humphreys, B. [Teller]

Hussein-Ece, B.

Hylton, L.

Janke, B.

Jolly, B.

Kirkwood of Kirkhope, L.

Lee of Trafford, L.

Lester of Herne Hill, L.

Ludford, B.

Maddock, B.

Manzoor, B.

Miller of Chilthorne Domer, B.

Newby, L. [Teller]

Oates, L.

Paddick, L.

Palmer of Childs Hill, L.

Parminter, B.

Randerson, B.

Roberts of Llandudno, L.

Scott of Needham Market, B.

Sharp of Guildford, B.

Sheehan, B.

Shipley, L.

Shutt of Greetland, L.

24 Feb 2016 : Column 355

Smith of Newnham, B.

Stephen, L.

Stoneham of Droxford, L.

Suttie, B.

Taverne, L.

Thomas of Gresford, L.

Thomas of Winchester, B.

Tope, L.

Tyler, L.

Tyler of Enfield, B.

Wallace of Tankerness, L.

Walmsley, B.


Ahmad of Wimbledon, L.

Altmann, B.

Arbuthnot of Edrom, L.

Ashton of Hyde, L.

Astor of Hever, L.

Balfe, L.

Bates, L.

Berridge, B.

Best, L.

Bew, L.

Bilimoria, L.

Blencathra, L.

Borwick, L.

Bourne of Aberystwyth, L.

Brabazon of Tara, L.

Brady, B.

Bridgeman, V.

Bridges of Headley, L.

Brougham and Vaux, L.

Byford, B.

Carrington of Fulham, L.

Chester, Bp.

Chisholm of Owlpen, B.

Cope of Berkeley, L.

Cormack, L.

Courtown, E.

Crathorne, L.

Crisp, L.

De Mauley, L.

Dixon-Smith, L.

Dunlop, L.

Eaton, B.

Eccles, V.

Eccles of Moulton, B.

Empey, L.

Evans of Bowes Park, B.

Fairfax of Cameron, L.

Fall, B.

Farmer, L.

Faulks, L.

Feldman of Elstree, L.

Fink, L.

Finkelstein, L.

Finn, B.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Freeman, L.

Freud, L.

Gardiner of Kimble, L. [Teller]

Garel-Jones, L.

Geddes, L.

Gilbert of Panteg, L.

Goschen, V.

Hailsham, V.

Hamilton of Epsom, L.

Harding of Winscombe, B.

Hayward, L.

Helic, B.

Henley, L.

Higgins, L.

Hodgson of Abinger, B.

Hodgson of Astley Abbotts, L.

Holmes of Richmond, L.

Horam, L.

Howe, E.

Hunt of Wirral, L.

Inglewood, L.

James of Blackheath, L.

Jenkin of Kennington, B.

Kakkar, L.

Keen of Elie, L.

Kinnoull, E.

Lamont of Lerwick, L.

Lang of Monkton, L.

Lansley, L.

Leigh of Hurley, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Livingston of Parkhead, L.

Lupton, L.

Lyell, L.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

Mackay of Clashfern, L.

Maginnis of Drumglass, L.

Marlesford, L.

Mawson, L.

Montrose, D.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Moynihan, L.

Neville-Jones, B.

Newlove, B.

Norton of Louth, L.

O'Cathain, B.

Oppenheim-Barnes, B.

O'Shaughnessy, L.

Perry of Southwark, B.

Pidding, B.

Prior of Brampton, L.

Risby, L.

Rock, B.

Scott of Bybrook, B.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sheikh, L.

Sherbourne of Didsbury, L.

Shields, B.

Shinkwin, L.

Skelmersdale, L.

Smith of Hindhead, L.

Somerset, D.

Spicer, L.

Stair, E.

Stedman-Scott, B.

Stowell of Beeston, B.

Stroud, B.

Suri, L.

Taylor of Holbeach, L. [Teller]

Taylor of Warwick, L.

Trees, L.

Trimble, L.

True, L.

Tugendhat, L.

Ullswater, V.

Warsi, B.

Wasserman, L.

Wheatcroft, B.

24 Feb 2016 : Column 356

Whitby, L.

Wilcox, B.

Willetts, L.

Williams of Trafford, B.

Younger of Leckie, V.

9.52 pm

Immigration Act 2014 (Commencement No. 6) Order 2016

Motion to Regret

Tabled by Lord Rosser

That this House regrets that the Immigration Act 2014 (Commencement No. 6) Order 2016, laid before the House on 11 January, was laid following inadequate consultation, and asks the Government to undertake a further consultation before the commencement order comes into force (SI 2016/11).

Relevant document: 22nd Report from the Secondary Legislation Scrutiny Committee

Motion not moved.

Scotland Bill

Report (1st Day) (Continued)

9.53 pm

Amendment 29

Moved by Lord Stephen

29: Clause 35, page 37, leave out lines 17 to 33 and insert—

“Equal opportunities in relation to the Scottish functions of any Scottish public authority or cross-border public authority, including appointments to non-executive posts on boards of Scottish public authorities with mixed functions or no reserved functions. The provision falling within this exception includes provision that reproduces or applies an enactment made in or under the Equality Act 2010, with or without modification, without affecting the enactment as it applies for the purposes of that Act. It does not include any modification of that Act, or of any subordinate legislation made under it, except—

(a) provision that supplements or is otherwise additional to provision made by that Act that enhances, but does not diminish, the protection and promotion of equal opportunities afforded by the provision made by that Act;

(b) in particular, provision imposing a requirement to take action that the Act does not prohibit.”

Lord Stephen (LD): My Lords, I spoke to Clause 35 in Committee. Protection from discrimination and the promotion of equality of opportunity are fundamental markers of any fair and decent society. As Clause 35 sets out how these issues will be dealt with in the context of the Scotland Bill, it is essential that the meaning of the clause is clear. Despite the Minister’s assurances in Committee, the Equality and Human Rights Commission and other key stakeholders remain concerned that this is still not the case. I am therefore moving Amendment 29, which is intended to make absolutely clear the extent of the Scottish Parliament’s legislative competence in relation to changes to the Equality Act 2010. I very much welcome the support of the noble Lord, Lord McAvoy, and the noble and

24 Feb 2016 : Column 357

learned Lord, Lord Davidson, and look forward to their support on this amendment in the Division Lobby shortly. We shall see.

As drafted, Clause 35 prohibits modification of the Equality Act 2010 but allows some limited addition. Whether a change to the Act is a modification or an addition will be difficult to assess. This lack of clarity will lead to confusion and potential legal challenge. However, Amendment 29 would make it clear that the important protections in the Equality Act will be maintained and can be enhanced. It would clarify that limited modification is permitted by the Scottish Parliament only where it is additional to and an enhancement of the present legislation. It would therefore become clear that the Scottish Parliament had powers to increase protection from discrimination, harassment and victimisation in the functions of Scottish public bodies by, for example, adding new protected characteristics prohibiting dual or multiple discrimination or enhancing remedies. In doing so, the amendment would ensure that the fundamental right to be free from discrimination and harassment is protected across Great Britain, but it also enables the Scottish Parliament to provide greater protections in relation to the Scottish functions of devolved public services. It would provide clarity that this could be done and ensure that the Smith commission commitment to devolve,

“the introduction of gender quotas in respect of Scottish public bodies”,

is delivered, while providing clarity that any such provision made by the Scottish Parliament could not go beyond the positive action permitted by EU law and reflected in the Equality Act 2010. In supporting greater efforts to ensure that women have fair representation on public boards, we want to ensure that this is not achieved through unlawfully discriminating against men or at the expense of other under-represented groups such as those from ethnic minorities and the disabled.

Amendment 33 relates specifically to diversity on public boards. As drafted, Clause 35 would limit the ability of the Scottish Parliament to encourage diversity on public boards in relation to any protected characteristics not within the present meaning of “protected characteristic” in the Equality Act 2010. This means that the Scottish Parliament would not be able to legislate to encourage diversity on public boards in respect of any new protected characteristics for which it might otherwise introduce protection. It would, for example, restrict moves to address under-representation on public boards of people who are intersex, should the Scottish Parliament decide to introduce this as a new protected characteristic.

Amendment 32 relates to the public sector equality duty, which is a potentially powerful tool contained in the Equality Act 2010. It requires public authorities and those exercising public functions to give proper consideration to proactively eliminating discrimination and advancing equality of opportunity. It is known as the general duty. The amendment, by devolving legislative competence for the general PSED, would enable the Scottish Parliament to impose stronger requirements on Scottish public bodies to eliminate discrimination, advance equality of opportunity and foster good relations between different groups. Scottish Ministers already

24 Feb 2016 : Column 358

have legislative competence in respect of the specific equality duties, which are duties in secondary legislation that tell public authorities how to implement the general duty. We have already seen how the stronger specific duties in Scotland under the existing devolved power have driven more transparency in relation, for example, to the gender pay gap in Scottish public authorities. Devolving legislative competence for the general equality duty would give the Scottish Parliament greater freedom to require its public services to do even more.

Amendments 31 and 34 relate to equality in political representation and therefore will be of great interest to all Members of the Committee. They would enable the Scottish Parliament to permit political parties to take stronger action in their arrangements for selecting candidates in order to reduce the under-representation of people with certain protected characteristics in the Scottish Parliament and Scottish local government, extend the period in which all-women candidate shortlists are permitted, and require political parties to publish diversity information in relation to candidate selection. I note that the Minister’s response in Committee referred to the Smith commission’s position that the Scottish Parliament will have no powers over the regulation of political parties. However, I argue that the provisions that could and should be devolved under these amendments relate to equality of opportunity for election candidates, not to issues of political party regulation.

10 pm

Part 1 of the Bill devolves to the Scottish Parliament all powers relating to the conduct of elections to the Scottish Parliament and local government elections in Scotland. Taken together, the provisions of the Scotland Bill represent a very significant shift in how Scotland will be governed. As such, the devolved institutions will have responsibility for and be accountable for a significantly wider range of areas affecting people’s lives in Scotland. Therefore, the Equality Act provisions relating to increasing diversity through these elections should also be devolved, so that the Scottish Parliament can encourage stronger action to tackle under- representation in devolved institutions.

These amendments would not permit the Scottish Parliament to legislate to allow shortlists made entirely of people with a particular protected characteristic other than sex. While this tool is appropriate for women —a group making up more than 50% of the population —it would seem disproportionate if it were used for far smaller groups, thereby excluding very large sections of the population from shortlists.

These amendments reflect the position in the Equality Act 2010, which was widely debated and agreed by all parties at the time of its passing into legislation to be a proportionate and appropriate position. I therefore hope that they will receive support in the Chamber this evening. I beg to move.

Amendment 30 (to Amendment 29)

Moved by Lord McFall of Alcluith

30: Clause 35, line 17, at end insert—

“( ) provisions in relation to candidates at an election for membership of the Scottish Parliament or a local government election in Scotland.”

24 Feb 2016 : Column 359

Lord McFall of Alcluith (Lab): My Lords, I thank the noble Lord, Lord Stephen, for speaking to the amendments. We are generally supportive of a number of them but, as my noble friend Lord McAvoy said earlier, the Labour Party’s aim is to ensure that the Bill gets on the statute book. It is with that realistic element in mind that we debate these issues. The noble Lord, Lord Forsyth, shakes his head, but he has been shaking his head all night—and for years—on this issue. It is important that we are constructive. I am proud that we have been constructive on this side in helping the Bill to become an Act, therefore ensuring that the relationship between the Scottish Parliament and the UK Parliament gets off on the best foot. I am sure that government Ministers will be on the same level as us on that sentiment.

We support Amendment 29, tabled by the noble and learned Lord, Lord Wallace, the noble Lord, Lord Stephen, my noble and learned friend Lord Davidson and my noble friend Lord McAvoy. The amendment would give the Scottish Parliament legislative competence for equality of opportunity relating to the Scottish functions of Scottish and cross-border public authorities, including non-executive appointments to public boards. It also clarifies that the Scottish Parliament’s power to modify the Equality Act 2010 is limited to making provision that enhances the protection and promotion of equal opportunities. Our Amendment 30 would amend Amendment 29 and give the Scottish Parliament the ability to set quotas for candidates at Scottish parliamentary and local elections. I also speak in support of Amendments 31 and 33, which we have co-signed with the noble and learned Lord, Lord Wallace, and the noble Lord, Lord Stephen.

I start by addressing Amendments 29, 31 and 33, which have been drafted by the Equality and Human Rights Commission. First, we place on record our thanks to the EHRC for its work and its continued support throughout the passage of the Bill. Taken together, these amendments have a significant impact on the Scottish Government’s ability to tackle inequality. As the noble Lord, Lord Stephen, has just said, the amendments will give the Scottish Parliament legislative competence in respect of equality of opportunity in Scottish and cross-border public authorities, including non-executive appointments to public boards. They clarify that changes to the Equality Act can only enhance the protection and promotion of equal opportunities, which at present is insufficiently clear.

They also ensure that the Scottish Parliament is not limited in its capacity to act in relation to non-executive appointments to public boards. Finally, they give the Scottish Parliament legislative competence over the public sector equality duty. The Minister stated in Committee that,

“devolving the duty itself is a step too far”. —[

Official Report

, 19/1/15; col. 674.]

However, he seemed to be arguing that this was more for bureaucratic reasons than anything else. If that is the case, I submit that the Government should look carefully at these amendments to see what can be done.

Lord Forsyth of Drumlean: The noble Lord is making a case for these amendments but, as I understand the Labour Party’s position, it is committed to ensuring

24 Feb 2016 : Column 360

that no amendments are made to the Bill. So why are we sitting here at 10.06 pm listening to advocacy for amendments which his party is determined should not actually get on to the statute book?

Lord McFall of Alcluith: Actually, I remember, at the beginning of the day, the noble Lord being very robust about Clause 1 and threatening to bring the house down; then he did not press his amendment. Why is he so vigorous at one stage and then so weak and wobbly-kneed? He should stay by his conviction and put the vote to the House, so that he can find out what their measure is. What is sauce for the goose— I will let him finish it.

The Minister mentioned in Committee that devolving the competence to the public sector itself would be a step too far. The Government should look at these amendments to see what can be done. We would like to think that the measured reason we have at this Dispatch Box could influence the Minister before the end of the day. That is why we are standing here, doing our public duty after 10 pm, and I am sure that I will get acclamation from all sides of the House for that.

I agree with the Minister that we must be cautious about creating excessive burdens on private and voluntary groups. I urge the Government not to simply dismiss the idea out of hand. There will clearly be challenges—we accept that—but these have to be weighed against the outcome of fundamentally altering our society’s approach to equality. Our Amendment 30, which takes the somewhat unusual step of amending an amendment, increases the scope of Amendment 29. As I have made clear, we support Amendment 29, but we believe it could go further. Indeed, it needs to go further to ensure that the Scottish Parliament reflects the society it represents.

Amendments 31 and 34 would require political parties to publish diversity information in relation to Scottish elections. Of course, transparency is important and we expect the Minister to agree with us in mentioning the initiative when it comes to pay. However, from experience we are aware that, despite this action, the problem remains a negative feature on our culture and society. Indeed, when it comes to pay, at the current rate of progress it will take nearly half a century for women to be paid the same as men. This demonstrates that we need to go further than Her Majesty’s Government are apparently prepared to go. The Scotland Bill provides a vehicle to do just that.

More can be done to promote gender equality in politics. In fact, the intent of Amendment 30 is to give the Scottish Parliament the ability to set quotas for candidates at Scottish parliamentary and local elections. Under the leadership of Kezia Dugdale, Labour has made substantial progress on this issue. Research from Women 50:50, which I thank for its continued support and guidance, revealed that 52% of the constituency Labour candidates and 50% of the Labour list candidates in the upcoming elections are women, compared with just 15% and 14% respectively for the Conservatives. So a determined and committed leadership shows what can be achieved by introducing candidate quotas. I hope that we can make this the norm across Scotland. It is an extension of the principles of the Smith commission since Smith advocated that the Scottish

24 Feb 2016 : Column 361

Parliament should have more autonomy over equality provisions in society. If they are good enough for the public bodies in Scotland, it is surely illogical to argue that we would not want the same for the Government who represent Scotland. Indeed, as Women 50:50 says:

“We need a fair number of women in parliament so that women’s lived experiences exist in policy-making. The system and the policies it creates disadvantage women if there are not enough women round the table to actually represent their views. It is crucial to democracy and to women across Scotland to be represented fully”.

This amendment, combined with amendments already referred to, would help to continue to challenge this fundamental disparity which we have in our political structures. With these amendments we invite Scottish society to play its part in bringing about the more equal, fair and inclusive society that everyone wishes for Scotland. We should hold our elected representatives to those same high standards. In accepting these amendments, the Government would bring about such parity. I hope that, even at this late hour, debating these issues can stimulate the Government to think differently and perhaps result in a changed outcome before we next meet next week. With that, I beg to move.

The Parliamentary Under-Secretary of State, Scotland Office (Lord Dunlop) (Con): I thank noble Lords who have spoken—the noble Lords, Lord Stephen and Lord McFall. These provisions and amendments were also debated in Committee. The Government are committed to safeguarding equality, tackling discrimination where it arises and promoting transparency. However, that is, of course, not to say that initiatives and protections in addition to those offered by the Equality Act do not have a part to play, as the Smith commission saw.

The purpose of Clause 35 is to devolve greater equal opportunities powers to the Scottish Parliament. The Scottish Parliament can introduce new equality protections and requirements on Scottish public authorities and cross-border authorities exercising devolved functions, provided these do not conflict with or change the existing provisions of the Equality Act 2010.

The Scottish Parliament can, however, amend the 2010 Act in regard to appointments to the boards of Scottish public authorities by, for example, enabling the imposition of quotas on grounds of gender or other protected characteristics, but this does not apply to cross-border bodies.

In delivering Smith, the equal opportunities clauses strike the right balance between the need to confer greater competence on the Scottish Parliament for safeguarding and promoting equalities in public bodies—a key concern of the Scottish Government—and the importance of preserving a GB-wide legal framework.

The Government’s interpretation of paragraph 60 of the commission report ensures that we continue to reserve the subject matter of the 2010 Act, while providing the Scottish Parliament with the ability to legislate for specific provisions such as gender quotas in line with the Smith agreement. Through the general exception we are providing, the Scottish Parliament will be able only to supplement the 2010 Act. The Scottish Parliament will not be able to subtract any protections but will instead be limited to increasing and promoting protections.

24 Feb 2016 : Column 362

10.15 pm

In relation to board appointments, the Scottish Parliament will be able to modify the 2010 Act if necessary; for example, to introduce gender quotas. The Government believe that applying the exceptions only to non-executive directors strikes the right balance between increasing diversity on boards and the need to minimise intervention in the day-to-day management of an authority, which would not be the case if the scope of the exceptions were to include salaried employees, such as CEOs and finance directors, rather than simply those subject to public appointments.

The provisions have undergone revision as a result of wide-ranging engagement and reflection on comments from the Scottish Government on the drafting. The clause as drafted delivers the necessary devolution of powers and the Government are confident that this delivers the Smith agreement. Therefore, the drafting approach in Amendments 29 and 33 does not need to be revised or expanded. To do so would risk the integrity of the provision, which we have worked to ensure gives the Scottish Parliament the scope to introduce gender quotas, for example, while retaining necessary protections.

Turning to the equality requirements on political parties and candidates, shortlisting electoral candidates on the basis of sex and diversity reporting are provisions in the Equality Act 2010. This is remaining reserved, as agreed by the Smith commission. The Smith commission was also explicit in stating that the regulation of political parties would not be devolved. Whichever way you look at it, the agreement clearly points to this aspect of equality remaining reserved. Amendments 30, 31 and 34 would go beyond this and the Government cannot support them. I accept that Section 106 of the Equality Act, requiring the publishing of diversity data on party candidates, has not been commenced. However, there is nothing to prevent political parties in Scotland or elsewhere in Great Britain reporting on the diversity of their candidates on a voluntary basis.

Turning finally to the public sector equality duty, the Smith commission did not call for further devolution of the duty and indeed was specific that the Equality Act 2010 should remain reserved. Scottish Ministers already have wide-ranging devolved powers under the PSED, which enable them, through the setting of specific duties for enabling the better performance of their obligations under the general equality duty, to require Scottish public authorities to update and publish equality statements, and report on their performance in relation to equalities, among other requirements.

Lord Stephen: I very much welcome the information that the Minister has had consultation with the Scottish Government on these issues but I wonder what consultation and discussion have taken place with the Equality and Human Rights Commission on all these matters.

Lord Dunlop: The Government consult the Equality and Human Rights Commission on an ongoing basis and I am happy to write to the noble Lord to address the specific point about what consultation there has been on this.

Scottish Ministers may specify Scottish public authorities which are to be subject to the PSED; for example, under their devolved powers in relation to

24 Feb 2016 : Column 363

the PSED they can require gender pay gap information to be published by Scottish public authorities, something that the Government are now also planning to implement for larger private employers across Great Britain. To devolve the duty risks the creation of additional burdens for private and voluntary sector bodies that provide some public services, through excessive contractual requirements imposed by Scottish public bodies on their suppliers; for example, requiring Scottish public bodies to ensure that private sector providers report on their gender pay gaps or carry out gender pay audits as a contractual condition would be burdensome, especially to smaller employers. It would also alter the careful balance we have struck between delivering a package of measures to implement the Smith commission and maintaining a coherent, GB-wide framework for the duty as a whole. I therefore urge noble Lords to withdraw their amendments.

Lord Stephen: My Lords, I thank the Minister for his response and the Labour Party for supporting these amendments. I welcome the support of the noble Lord, Lord McFall, alongside his colleagues, the noble Lord, Lord McAvoy, and the noble and learned Lord, Lord Davidson. The important point here is that these are good, detailed and well-argued amendments that were submitted with the advice and support of the Equality and Human Rights Commission. They were notified in Committee and it seems disappointing that there has not been consultation between the Government and the commission, which is the body given statutory responsibility for these matters. The idea here is not to be controversial or difficult but to be entirely constructive on matters of detail. These good amendments are very much in keeping with the spirit of the Smith commission. I am not minded to divide the House on the matter this evening. I do not think that much divides us and what the Minister said has been extremely helpful. However, on balance, the Equality and Human Rights Commission has indicated that there was a need for greater clarity in these areas. These amendments would have strengthened the Bill and it is disappointing that they will, it seems, not now appear on its face. I beg leave to withdraw Amendment 29.

The Deputy Speaker (Lord Geddes) (Con): My Lords, this is a slight technicality but we are in fact discussing Amendment 30 and not Amendment 29. The noble Lord, Lord McFall, may wish to press or withdraw his amendment.

Lord McFall of Alcluith: I beg leave to withdraw Amendment 30.

Amendment 30 (to Amendment 29) withdrawn.

Amendment 29 withdrawn.

Amendments 31 to 34 not moved.

Clause 38: Roads

Amendment 35

Moved by Lord Dunlop

35: Clause 38, page 41, line 28, leave out from “relating” to “to” in line 29

24 Feb 2016 : Column 364

Lord Dunlop: My Lords, I am pleased to move Amendment 35 and to speak to Amendments 36 to 40. In Committee in the other place, the Labour Party brought forward an amendment on responsible parking which was also raised in Committee in this House. At that stage, I committed to updating the House at Report. I am therefore pleased to bring forward Amendments 36 and 37 to the Bill to address this long- standing issue.

These amendments seek to address an issue that is of interest to many people in Scotland: the irresponsible parking of motor vehicles. This issue has particular impact on people with disabilities, parents with pushchairs and the elderly, especially when vehicles have been badly parked on pavements. A number of attempts have been made to bring forward legislation in the Scottish Parliament to regulate this area, but they have failed due to questions of that Parliament’s legal competence in this area. As the debate on this issue in Committee on 19 January demonstrated, there is widespread confusion as to why the Scottish Parliament cannot regulate in this area when it otherwise has the competence to deal with much transport-related policy.

The Secretary of State for Scotland has been committed to seeking a solution to this constitutional question for some time and, as I told this House on 19 January, UK and Scottish Government officials have been discussing the detail of how this can be achieved. We have been mindful of the need to take on the Scottish Government’s views to ensure that the way forward is workable and appropriate. As a consequence of those discussions we have tabled these amendments, which will clear up the constitutional questions on this matter. These amendments will make it clear that the Scottish Parliament has the powers to regulate the parking of vehicles. Amendments 36 and 37 amend the Bill to except the subject matter of the Road Traffic Act that relates to the parking of vehicles on roads from the roads reservation. Consequently, the Scottish Parliament will have the power to regulate the parking of vehicles but driving remains reserved.

For what appears a relatively straightforward policy aim, I am aware that there have been a number of complex considerations. To that end, I am grateful to the officials in both the Scottish Government and this Government for their contribution and input. It is possible that a small number of minor and technical amendments may need to be made at Third Reading to ensure that any associated executive functions are transferred to the Scottish Ministers. This is being explored by officials. Nevertheless, today’s amendments have addressed the key issue at stake.

The amendments make it clear that the Scottish Parliament has the competence to bring forward legislation to regulate parking in Scotland. I believe that this move will be welcomed by people across Scotland who wish to see the Scottish Parliament take steps to address inconsiderate and irresponsible parking. I beg to move.

Lord McFall of Alcluith: My Lords, I very much welcome the government amendments on pavement parking. As the Minister just said, the amendments to Clauses 38 and 41 and to Schedule 2 relate to road

24 Feb 2016 : Column 365

provisions. They alter the timing of when regulations come into force to give vehicles used for various purposes connected with devolved matters exemptions from both speed limits and certain road signs, and remove references to exemptions from speed limits for vehicles used in connection with reserved matters.

The Government have finally tabled amendments relating to parking on pavements, an issue which we raised in Committee. We support these amendments, in particular Amendments 37 and 38, which reflect those we tabled in the other place and in your Lordships’ House in Committee. We are obliged to the Secretary of State for Scotland and the Ministers for their work on this matter. We also thank the Secretary of State for graciously noting that this initiative was started by Mark Lazarowicz, former Member of Parliament for Edinburgh North and Leith.

Although we are very grateful that the Government have moved these amendments, we understand that there may be some outstanding amendments to be tabled at a later stage, and I would be grateful if the Minister outlined that in more detail. We also put on record our thanks to both Living Streets and Guide Dogs Scotland for their support and briefing on this matter. They made it very clear to us why these amendments were needed. Pavement parking can be and is dangerous for pedestrians, especially people with sight loss, parents with pushchairs, wheelchair users and other disabled people. Those with sight loss are particularly affected, as they can be forced into oncoming traffic which they cannot see.

One of my close boyhood friends has become blind in the past seven or eight years. He has shown me the dangers of parked cars at a very practical level and the limitations he has. One of his pleasures now—a simple one—is leaving his house and going down to the British Legion club for his lunch. However, there are certain days, particularly on weekends, when he cannot move and is on his own, simply because of the cars that are parked there. The quality of one’s life is very much affected by that. I know, from my own family having a disabled child, the impediments there are to living a life like ordinary people if there is this lack of consideration with parking. This measure is not before time.

On the issue of blind people and people with sight loss being forced into oncoming traffic, a survey by Guide Dogs showed that 90% of blind or partially sighted people encounter problems with street obstructions and 90% of those had experienced trouble with cars parked on pavements. Everyone should know that pavements are not designed to take the weight of vehicles, which can cause paving to crack and the tarmac to subside—and cracked and subsiding pavements are a further danger to blind people walking on them. It causes trip hazards for pedestrians and has a particular impact on blind and partially sighted people. The cost of repairing pavements is a burden for local authorities.

In the light of the previous remarks of the noble Lord, Lord Forsyth, this is a great example of the Government and Opposition working together, taking up issues in Committee, the Government going back, engaging in further consultation and, without a vote or any chagrin, agreeing amendments which are for

24 Feb 2016 : Column 366

the better for society, particularly people who are disadvantaged. I congratulate the Secretary of State and Ministers on listening to us on this issue.

10.30 pm

Lord Lyell (Con): Perhaps my noble friend can give me some guidance. I think Amendment 40 is in this group. Reference is made in new Clause 33(1)(a) to a puffin pedestrian crossing regulation. We do not have puffin crossings in Kirriemuir. Do the regulations apply to Scotland? The amendment refers to revoking English and Welsh legislation on puffin crossings. Will my noble friend write to me to tell me what a puffin crossing is and what it is about?

Lord Dunlop: I am very happy to respond in writing to my noble friend.

I thank the noble Lord, Lord McFall, for his contribution. Before I respond to his remarks, when I spoke previously, I inadvertently omitted to speak to some technical amendments. With the leave of the House, I shall do so briefly now.

The amendment to Clause 38 removes the words,

“vehicles used in connection with any reserved matter”,

as they are unnecessary. Even without these words, exempting vehicles used for reserved purposes would still be reserved. The deletion of these words will help to avoid any potential for misunderstanding arising from their unnecessary inclusion.

The amendment to the interpretation provision in Clause 38 is designed to devolve to the Scottish Parliament the subject matter of Section 87 of the Road Traffic Regulation Act 1984 as amended by Section 19 of the Road Safety Act 2006.

The other amendments relate to work being done by the UK Government to prepare, as part of a long-standing project, a new set of regulations which will prescribe speed limit exemptions for vehicles used in a variety of circumstances which require a fast response. These amendments are designed to ensure that, with Scottish Ministers’ consent, the new secondary legislation includes exemptions from speed limits for vehicles used in connection with non-reserved matters and that those exemptions apply GB-wide. A considerable amount of work has already taken place to develop those regulations. If they are to be truly effective, change to relevant traffic signs will also be needed. The amendments will enable the Secretary of State, with Scottish Ministers’ consent, to make regulations which are GB-wide in their application and allow vehicles used for various purposes connected with devolved matters to have exemptions from road signs and general directions such as “keep left” and red traffic lights. The aim is to assist stakeholders and avoid duplication of the work already carried out by the Department for Transport. As with the amendments on parking, it is possible that there may need to be a small number of minor and technical amendments at Third Reading in this area. This is being explored by officials.

The Department for Transport will work closely with Transport Scotland on these regulations, so there is input from Transport Scotland. It would be unhelpful

24 Feb 2016 : Column 367

if they could not take advantage of the work already carried out due to a timing issue. The amendments are intended to resolve this, and allow Scotland to benefit from the new regulations as a starting point for speed limit and road traffic sign law post-devolution. I commend those amendments.

In conclusion, the amendments address an important issue which has been on our radar for some time, and I am grateful to the noble Lord, Members of the other place and stakeholders who have brought this issue to a head. As I said, I am also grateful to the officials in both Governments, who have worked in discussion to pursue a drafting solution to this issue. These provisions will clarify the competence of the Scottish Parliament to legislate to regulate parking in Scotland. I also note the organisations Living Streets and Guide Dogs Scotland, who have recognised the amendments as bringing to a close the question of the Scottish Parliament’s competence in this area.

The Living Streets director said:

“The last minute amendment to the Scotland Bill removes the final barrier to outlawing pavement parking. Finally, the Scottish Parliament will have the power to protect older, disabled and vulnerable pedestrians from inconsiderate parking, which is fantastic news”.

Guide Dogs Scotland said:

“This is great news for people with sight loss, guide dog owners, wheelchair or mobility scooter users, and families with pushchairs. People with reduced mobility have been waiting a long time for legislation that can take inconsiderate parking off our streets, and allow them to get out and about safely in our communities”.

The response to these amendments reinforces the importance of this issue to the people of Scotland, and I am glad that the Scottish Parliament can now take steps to address inconsiderate and irresponsible parking.

Amendment 35 agreed.

Amendments 36 to 38

Moved by Lord Dunlop

36: Clause 38, page 41, line 30, after first “the” insert “first”

37: Clause 38, page 41, line 32, at end insert—

““The subject-matter of the Road Traffic Act 1988 so far as relating to the parking of vehicles on roads.”

( ) At the end insert—”

38: Clause 38, page 41, line 35, leave out from second “as” to “(and” in line 36 and insert “substituted by section 19 of the Road Safety Act 2006 as at the date when section 38 of the Scotland Act 2016 comes into force, treating section 19 and any amendment affecting it at that date as if they were in force”

Amendments 36 to 38 agreed.

Clause 41: Roads: consequential provision etc

Amendment 39

Moved by Lord Dunlop

39: Clause 41, page 45, line 27, leave out subsections (3) to (6)

Amendment 39 agreed.

24 Feb 2016 : Column 368

Schedule 2: Roads: consequential and related amendments

Amendment 40

Moved by Lord Dunlop

40: Schedule 2, page 85, line 20, at end insert—

40: Schedule 2,

““Part 2Exercise of powers by agreementTraffic signs powers

33 (1) Sub-paragraph (2) applies if the Secretary of State makes a statutory instrument revoking the following instruments in relation to England and Wales—

(a) the Zebra, Pelican and Puffin Pedestrian Crossing Regulations and General Directions 1997 (S.I. 1997/2400);

(b) the Traffic Signs (Temporary Obstructions) Regulations 1997 (S.I. 1997/3053);

(c) the Traffic Signs Regulations and General Directions 2002 (S.I. 2002/3113).

(2) Despite anything in section 39 or 40 or Part 1 of this Schedule, the Secretary of State may by that instrument exercise one or more of the traffic signs powers to make provision in relation to roads in Scotland (including provision revoking one or more of the instruments mentioned in sub-paragraph (1) in relation to Scotland), with the consent of the Scottish Ministers.

(3) The traffic signs powers are—

(a) the power to make regulations under section 25 of the Road Traffic Regulation Act 1984 (pedestrian crossings);

(b) the power to make regulations under section 64 of that Act (traffic signs);

(c) the power to give general directions under section 65(1) of that Act (placing of traffic signs);

(d) the power to give general directions under section 85(2) of that Act (traffic signs for indicating speed restrictions);

(e) the power to make regulations under section 36(5) of the Road Traffic Act 1988 (traffic signs: discretionary disqualification for failure to comply).

(4) The Secretary of State may exercise a power in any way by virtue of this paragraph only if the Secretary of State could have exercised it in that way but for the amendments made by sections 39 and 40 and Part 1 of this Schedule.

Powers to exempt from speed limits

34 (1) Sub-paragraph (2) applies in relation to the first statutory instrument made by the Secretary of State containing regulations under section 87(1)(b) of the Road Traffic Regulation Act 1984 as substituted by section 19 of the Road Safety Act 2006 (exemptions from speed limits: prescribed purposes and circumstances) in relation to vehicles used on roads in England.

(2) Despite anything in section 39 or 40 or Part 1 of this Schedule, the Secretary of State may by that instrument, with the consent of the Scottish Ministers—

(a) exercise the power under section 87(1)(b) of the Road Traffic Regulation Act 1984 to make provision in relation to vehicles used on roads in Scotland otherwise than in connection with reserved matters, and

(b) in connection with any provision made by virtue of paragraph (a), exercise one or more of the traffic signs powers mentioned in paragraph 33(3) to make provision in relation to roads in Scotland.

(3) The Secretary of State may exercise a power in any way by virtue of this paragraph only if the Secretary of State could have exercised it in that way but for the amendments made by sections 39 and 40 and Part 1 of this Schedule.”

Amendment 40 agreed.

24 Feb 2016 : Column 369

Clause 42: Policing of railways and railway property

Amendment 41

Moved by Lord Faulkner of Worcester

41: Clause 42, page 46, line 17, at end insert—

“( ) There shall be an agreement between the British Transport Police Authority and the Scottish Government to ensure that the British Transport Police continues to police railways and railway property in Scotland.”

Lord Faulkner of Worcester (Lab): My Lords, in moving Amendment 41, I shall speak also to Amendments 42, 43 and 44. I express my appreciation to noble Lords in all parts of the House who have supported Amendments 41 and 42, and I am happy to support my noble friend’s Amendment 43 and Amendment 44 proposed by the noble Lord, Lord Empey. These amendments give the Government a sensible way out of the dilemma that became very clear in relation to the role of the British Transport Police in Scotland when these difficulties were identified by noble Lords in Committee. I was interested in what my noble friend Lord McFall said about the previous amendment—that the Government had listened carefully to the points made in Committee. It is a great pity that on the British Transport Police issue the same understanding does not appear to have manifested itself. Following that debate, the Minister wrote to all of us who participated in Committee and yesterday he convened a meeting on this subject. I am very grateful to him for taking such trouble, but I am afraid that the letter that he wrote falls short of what is required to safeguard the future of transport policing in Scotland, not least because it contained this sentence:

“As policing of railways is to be devolved, it will be a matter for the Scottish Parliament to decide whether the policing of railways should continue to be carried out by the British Transport Police Bodies, or whether these functions should be carried out under a different operating model”.

The Government’s position was made rather clearer by the three officials from the Department for Transport whom the Minister brought to yesterday’s meeting. They told us that they have been in discussions with the Scottish Government for some time about how Police Scotland will take over the responsibilities for policing the railways in Scotland from the British Transport Police.

What has been happening is that the Government have interpreted the report of the Smith commission in one way, and one way only, in respect of transport policing in Scotland. They appear to have given no consideration to the views of the British Transport Police Authority which have been expressed in documents sent to the Scottish Government, and also to its Public Audit Committee. I do not know how much those documents have been considered by UK Ministers. In particular, I would draw the House’s attention to the BTPA paper headed Options for the Devolution of Transport Policing in Scotland. The first option introduced a non-statutory devolved model of governance and accountability for specialist transport policing in Scotland. The second option dealt with a statutorily devolved model of governance and accountability, and the third one described what would happen if BTP’s Scottish division was fully integrated within Police Scotland.

24 Feb 2016 : Column 370

Let me deal first with option three, and particularly with the operational considerations, because this appears to be the course the Government are adopting. This section in the BTPA statement starts with this sentence:

“There is an accepted argument for Britain's railways to be policed in a manner that is not constrained by the geographic boundaries of other police forces or legal frameworks that the rail industry cuts across. Currently, BTP’s boundaries cover the total policing environment of the British rail network, and the structure of BTP provides a single point of contact and consistency in policing standards across the Scottish, English and Welsh railways. This includes working across two legal systems, which is important in day-to-day terms. For example when a crime or disorder occurs, often the exact location of the incident cannot be pinpointed. As BTP is responsible for policing the whole network, it currently does not matter a great deal at what exact point of a rail journey the crime took place. If the policing of the railway network were to be carried out by two bodies, there is a risk for confusion to arise over who would record and investigate crimes, which would be highly distressing for victims and cause unnecessary delay”.

A little later on, under the heading “Specialist Operational response”, there is a paragraph which reads:

“Fatality management, counter-terrorism, cable theft, dealing with people in precarious positions on the railway are examples of areas where BTP’s approach to policing on the railway has ensured that passengers are kept safe and are faced with the minimum of disruption to their journeys and has saved the industry billions of pounds over ten last ten years”.

There is a great deal more in the same vein in the authority’s options paper, which at this late time of night I do not have time to cover.

I shall just mention one other paragraph:

“Terrorism remains a high security concern for the UK as a whole, and the long-standing threat to transport infrastructure is very real. By raising the threat level in August 2014 to ‘severe’, the Home Secretary confirmed the increased risk to the public owing to the conflicts in Syria and Iraq, where terrorist groups are known to be planning attacks against the West. In addition to that, the nature of the threat is changing, with a heightened risk of ‘lone-wolf’ attacks in crowded places including railway stations. These developments have underlined the need for a more coordinated and integrated approach to counter-terrorism. The efforts to combat terrorism and extremism must be cross-border – an attack on Scottish soil may well be stopped in England. Equally, any perceived vulnerability arising from fragmented jurisdiction will be exploited by those planning an attack, and jeopardising the ability to police the network as a whole could well result in greater risks to passengers”.

I stress that these are not my assertions, but the views of seasoned policing professionals whose work is widely admired not just across Great Britain but abroad as well. These are men and women who know what they are talking about. We would be ill-advised to ignore them. We should heed their concerns and rule out what the BTPA describes as option 3, the complete integration of the British Transport Police into Police Scotland.

Its options 1 and 2 are consistent with the findings of the Smith commission, as are our Amendments 41 and 42 for they accept the devolution of transport policing in Scotland to the Scottish Government, but make it clear that it is a function that should still be carried out by the BTP reporting to Scottish Ministers. They also make the point that if our friends in Scotland do not like the word “British” applied to any organisation that operates north of the border, the force could easily be renamed “Transport Police Scotland”.

24 Feb 2016 : Column 371

Option 3, which the Government are adopting, files in the face of every objective assessment of the role, functions and effectiveness of the BTP over the past 15 years. The reports in 2001, 2003 and 2004, the report from the Transport Select Committee in another place, the Government’s White Paper The Future of Rail and the BTP’s triennial review all stressed the need for a dedicated national railway police force.

Our amendments are not inconsistent with a desire to achieve further devolution in Scotland as set out in the Smith commission report and enshrined in the Bill. Indeed, the amendments make it clear that in future Scottish Ministers and the Scottish Government may have the same relationship with BTP and its chief constable as Ministers have in England and Wales now.

All that we seek to do is ensure that arrangements to police our railways that have worked well for nearly 200 years through the operation of a dedicated and unified transport force, which has kept passengers and railway staff safe north and south of the Scottish border, are not put at risk through action that is hasty and ill-considered. I beg to move.

10.45 pm

Lord McAvoy (Lab): My Lords, I can understand where my noble friend Lord Faulkner is coming from. Along with the details that have been announced there is the extra factor of security, and I would have thought that that would justify a sympathetic approach from the Government. However, I cannot get away from the reality that devolution is devolution, and for us to try to lay down the conduct of the Scottish Government in relation to the British Transport Police, much as we would like to go up against this proposal of devolution, is wrong. I know where he is coming from and I sympathise with him. He has put a terrific case but, fortunately or unfortunately, it falters on the issue of devolution.

Amendment 43 is in the name of myself and the noble and learned Lord, Lord Davidson. What we are trying to do is influence not only the UK Government but the Scottish Government. The amendment would provide for the establishment of a joint board that would examine the transfer, implementation and operation of the devolution of the British Transport Police. I understand that the full integration of the BTP into Scotland would take around three years. During those three years there are bound to be issues that arise, possibly security in particular. In this amendment, the joint board, or whatever it would be called, would report back to the Scottish and UK Governments. It would not interfere or try to influence what the Scottish Government were doing except in the way of good advice, so the principle of devolution would be protected. I do not like to use the expression “holding feet to the fire”; it smacks of violence and I am dead set against violence.

The amendment would establish a joint board to oversee this specific aspect of the devolution settlement, with the requirement to report back to the UK and Scottish Parliaments about the transfer, implementation and operation of proceedings, with particular reference to security issues. It is a response to the wide-ranging

24 Feb 2016 : Column 372

debate that we had in Committee, which attracted considerable attention and participation from across the House, about the devolution of the BTP.

I make it very clear, as we have done all through these proceedings, that the amendment is not intended to delay, postpone or in any way alter the timetable of the devolution of the BTP. In keeping with the nature of devolution, once these powers have been devolved, it is up to the Scottish Parliament to determine the future of the BTP. I am honestly making it plain that we have no intention of forcing a vote on that. We are not into gesture politics.

Lord Wallace of Tankerness: The whole thing is a gesture.

Lord McAvoy: However, let me deal with those who are. Earlier, the noble and learned Lord, Lord Wallace of Tankerness, shared with the House a conversation that he alleges he had with the Labour Whips’ Office. I do not know whether it is true, but in my 23 years in the House of Commons conversations with the usual channels and with Whips were sacrosanct. But seeing as how the noble and learned Lord has seen fit to venture into this territory, I shall share, in further defence of our strategy of trying to influence not only the UK Government but the Scottish Government, a statement from the noble and learned Lord to myself at the Bar, which I would not normally share, in which he indicated that the Liberals were going to use the vote on the Crown Estate for election leaflets in the islands. So here we are—the Scotland Bill is reduced to a political gambit for cheap political point-scoring. [Laughter.] The noble Lords may laugh and scoff, but they are the only ones that are doing so. Therefore we are taking the honourable position of trying to influence, not just engaging in gesture politics, staging votes for cheap political points, and we hope that we have influenced the Government—we will see what their response is—and the Scottish Government as well.

Lord Forsyth of Drumlean: My Lords, I will briefly speak to Amendments 41 and 42. I thank the noble Lord, Lord Faulkner of Worcester, for having tabled these amendments and for putting the case so eloquently. We had quite a wide-ranging discussion in Committee and I am very disappointed indeed that the Government have not come forward with proposals—a number of constructive options were suggested.

I have been trying to think of two words to explain the conduct of the Official Opposition over the Bill, and “kowtow” would sum it up. They are utterly terrified to say anything that could be interpreted in any way as not being in line with the Smith proposals or as doing anything that might upset the Scottish Government, which is very disappointing, particularly in the context of this issue.

As the noble Lord, Lord Faulkner, pointed out, the British Transport Police has for nearly two centuries served our country extremely well. It is a while since I was Secretary of State but I remember the important role it had in ensuring that we were able to cope not just with terrorism but with drug traffickers and other criminals who use the transport network. It is a highly

24 Feb 2016 : Column 373

specialised area and it is an act of utter vandalism to break up the British Transport Police in the way that is being proposed.

It is a particularly stupid of the Government to go along with the idea that the British Transport Police should be fragmented and the Scottish element of it included in Police Scotland which, I am sad to say, is in Scotland regarded as something of a joke and a disaster. Prior to the Scottish Government making the changes we had independent police forces operating extremely effectively throughout Scotland. The advocates of devolution decided to take power away from those police forces and centralise them into Police Scotland, and the results have been disastrous as regards communications and operational failures. I place no responsibility for this on the individual members of the police force but on the Scottish Government, who have created this chaos. Both the notion that we should break up the British Transport Police and hand it over to an organisation which has just sacked its chief constable and appointed a new one to sort out its problems, and the amendments which have been put forward by the Labour Party tonight which suggest that we set up a quango to help deal with the problems of implementation and administration, are just breathtaking in the scale of their irresponsibility.

We have no reason to interfere with the operations of the British Transport Police, so what offends the Scottish Government about it? The noble Lord, Lord Faulkner, put his finger on it: it could be the B word —the fact that it is called “British”—which offends. However, this is not a Scottish issue but a United Kingdom issue. It is about the security of the United Kingdom as a whole. I very much hope that the Minister will think again about the options which have been put forward in the amendments tabled by the noble Lord, Lord Faulkner, about how we can maintain a British force.

The Earl of Kinnoull (CB): My Lords, the noble Lord is developing a very interesting point. I wonder whether, in doing so, he would like to refer to the no-detriment principle—principle number 5, of which I can hand him a copy now—and whether or not this offends that principle of the white sacred document, the Smith commission report.

Lord Forsyth of Drumlean: Indeed, I am familiar with the no-detriment principle, which is that policy changes on either side of the border should not have a negative impact on either country, and this is a classic example. So it is actually against the Smith commission proposals and, as the noble Lord, Lord Faulkner, pointed out, it is perfectly possible to maintain the integrity of the British Transport Police and meet the requirements of the Smith commission.

Can this be the same Government who are busy arguing that it is necessary for us to maintain our relationship with the European Union in order to maintain our security because of the importance of being able to share cross-border information et cetera? That same Government are now arguing and supporting

24 Feb 2016 : Column 374

a proposal that we should break up within our country a police force that operates cross-border. What is going to happen when the train gets to the border? Do the British Transport Police get off the train and somebody from Police Scotland gets on the train? How are they going to share information? What will the cost of all this be?

We have already had a glimpse of what might be in the fiscal framework: £200 million will be given to the Scottish Government to administer the welfare proposals that are being administered in large part in Scotland at present. That is money that would have been far better spent on welfare and not on bureaucracy. And here we are again. I always use the old cliche, “If it’s not broken, don’t fix it”. This is an organisation that has, as far as I am aware, served the public on the Glasgow Subway and throughout the rail network system. It is a specialist area, with the force operating on trains in dangerous circumstances using an experienced cohort with an esprit de corps. No one I have seen in the British Transport Police or among anyone with experience in this area supports what is being put forward. It is being put forward in order to kowtow to this obsession with trying to put a kilt on everything. It seems to me that the Government would do well to consider the amendments that have been put forward by the noble Lord, Lord Faulkner, think again and come back at Third Reading with something that looks to protect the interests and security of the people on both sides of the border.

I listened to the noble Lord, Lord McAvoy. He said that, basically, this is all very difficult and, although we would like to do something, we cannot offend against the principles of the Scottish Government being able to decide these matters. I say to my noble friend the Minister in all seriousness: if there is an incident as a result of this change which would not have occurred otherwise, Ministers will find themselves suffering extreme criticism, and deservedly so. I hope that my noble friend will think again on this and come back with an amendment at a later stage that preserves the integrity of this important force.

Lord Empey (UUP): My Lords, I would like to speak to Amendments 41 and 42, and then move to Amendment 44 standing in my name. First, I thank the Minister and his staff for facilitating meetings and discussions, and, indeed, the representatives from the Department for Transport for making themselves available. I would also like to commend the contribution from the noble Lord, Lord Faulkner, which was a tour de force of the situation that is in front of us.

When I tabled an amendment in Committee I never thought for one moment that the ripples would go out as they have—it seemed to strike a chord with people. We are fixing a problem that does not exist. The force’s figures and its success rate are all moving in the right direction. I have heard no criticism of the service delivery and am completely unaware of any proposal that would enhance the service. I have no doubt that officials, working with the Scottish Government, could come up with mechanisms to make the situation work. That is what civil servants do. My experience is that if Ministers ask them to do something, they do their best to deliver it, so something could be put together.

24 Feb 2016 : Column 375

11 pm

Having served on a police authority for 10 years at a time of transition, I make it very clear that if we go ahead and abolish this organisation in Scotland, it will not be free of risk and cost. To start with, the staff contracts are with the British Transport Police. Some of the staff may be offered the opportunity to transfer to Police Scotland, even within a division of transport police, and some may wish to stay with the parent organisation, but, just as happened with the transition from the Royal Ulster Constabulary to the Police Service of Northern Ireland, a lot of expertise will be lost. That is inevitable, and it will take many, many years to re-establish.

I have no doubt that there are people in Police Scotland who can be trained to do this job—those who care to transfer from the British Transport Police to Police Scotland or a division thereof. I have no doubt that you can always pull something together to make it work but there will be a period of years in which the service is not as effective as it is at the moment. If there were something wrong with the present system, I do not think that anybody here would have an issue with what is proposed. However, there is nothing wrong with it. This is pure, unadulterated politics. Having worked with nationalism for many years, I know that this is about sawing off another branch—removing any connection. It is ideological; it does not matter whether it is right or wrong. This is an ideological imperative, and I can tell noble Lords that acceding to it for no good reason will not bring any benefit whatever to the United Kingdom.

The noble Earl, Lord Kinnoull, raised a point about the no-detriment policy. I believe that the Smith commission has overreached itself because this will affect the rest of Great Britain. Maintaining security on the island is an integrated process and, because the network stretches across the border, inevitably the security on one side of the border is affected by the security on the other. Why weaken it?

Earlier today I was accused of being cynical, although perhaps fewer people will accuse me of that at this time of night, but the fact is that we have seen this type of thing before. These amendments, including Amendment 44 in my name, offer a menu of options. I do not believe that the British Transport Police should be touched at all. However, where policing powers are devolved to Scotland, the Scottish Parliament has a perfectly legitimate interest. Railway policing involves a geographical area with large tracts of land, properties and stations. Therefore, it has a perfectly legitimate interest in that, and rightly so.

I said in Committee that we had an issue with accepting the National Crime Agency in Northern Ireland. The nationalists at Stormont blocked the proposal to give the powers of a constable to an officer of the National Crime Agency and that delayed its implementation by three years. However, we found a solution, and a solution is expressed in Amendment 44. If this amendment were agreed to, it would do no injury whatever to the Smith proposals because it proposes an additional, not a replacement, process. It is done in that way because, if you give institutional and immediate expression to the legitimate interest of

24 Feb 2016 : Column 376

the Scottish Government and the Scottish Parliament in a policing issue, perhaps when they get involved in it and see it in operation they will conclude that there is no point in further proceeding to smash something that is not broken. It does not replace the proposal in the Bill but is additional to it. It also has the advantage that it could be introduced immediately without doing any injury at all to the Smith proposals.

However, the Government have to realise that this is a two-way street. There is a genuine English-Welsh issue to be considered. If you vandalise, as has been said, the British Transport Police, you will create a vulnerability for a period of time which will expose the rest of us to risk. That is not rocket science. I have no doubt that the two Governments can work together, make proposals and find processes. However, an extra link will be added to the chain in dealing with terrorists, people traffickers or whatever it happens to be. It goes in the very opposite direction of what happened in Scotland, where Police Scotland pulled together different forces in order to reduce the links. It has not worked yet but it might eventually. We are going in the opposite direction and adding to the links.

I believe that the Government should consider some of these amendments. I think that they should listen, as the noble Lord, Lord Faulkner, said, to the professional advice that has been given. We all know that this is politics. It is nothing to do with the delivery of the service. Today we saw an example of the constitutional chaos that we have inflicted upon ourselves throughout the United Kingdom over the past few years with this completely disjointed constitutional change and reform. Instead of a coherent process in which we know where we are going and we go to it, this is patchwork-quilt stuff with bits bolted on here and bits bolted on there. How many Bills have passed through this House in the past three years—Northern Ireland Bills, Welsh Bills, Scottish Bills? Now, by a Standing Order, the constitution of the United Kingdom is being torn up at the other end of the corridor and the status of MPs from the regions is being totally changed, and yet there has hardly been even a decent discussion about it. This is another example of it.

We have an opportunity here. We have given the Government some perfectly reasonable and sensible options because we understand the position that Ministers are in. It is not their fault—it is a circumstance that arose in a week of panic before the referendum in 2014. Things were said for the right reasons albeit, looking back, they were unwise. However, the implementation has got mixed up in this interparty rivalry in Scotland and this sort of obsession with not offending the SNP—which is a one-way street if ever I saw one. I have to respect that it has a mandate. I respect the fact that the powers of policing have been devolved. I also respect the fact that that can be institutionally recognised without damaging and destroying a service that works perfectly well.

I hope the Minister and the Government will reflect on those points before Third Reading and realise that there are options. There are genuine concerns, but there are also options for resolving them. I commend Amendment 44 to the House.

24 Feb 2016 : Column 377

The Earl of Kinnoull (CB): My Lords, I am grateful to the noble Lords, Lord Faulkner and Lord Empey, for speaking to these amendments—which, as I said in Committee, are most important. I am also grateful to the Minister for organising the drop-in yesterday. I regret that I turned up 27 minutes late, as I was detained on other business of the House, so I was only able to get a debrief—a very interesting debrief—from the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Empey.

I approach this matter from the point of view of the citizen, as I have done before. I think that the citizen is interested in security. They are interested in not having their daughter thumped on a train, and in drug smugglers not getting through. They are interested in terrorists being arrested. Our two holy documents—the white Smith agreement and the green Bill—as ever, need to be a good guide. This is another instance where they are in conflict. The noble Lord, Lord Forsyth, has been eloquently telling us about the no-detriment principle now for three months. I know that he knows it, but I thought that it should be read out. The agreement should,

“not cause detriment to the UK as a whole nor to any of its constituent parts”.

That is one of the core principles of the negotiations. Coming as it does at the start of the Smith commission report means that it has extra power. It is even more powerful than the many paragraphs that follow. Of course, paragraph 67 says very curtly:

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

Those two paragraphs—I stress again the no-detriment principle, which has been so much the core of what we have been talking about for three months—are at odds with what is in the sacred green document, and that needs to be resolved. It is something this House needs to work hard to resolve. It is not resolved at the moment. I certainly agree that it needs to be resolved for Third Reading.

To repeat what I said in Committee, I note that the British Transport Police has separate duties, separate skills, separate powers and separate staff, who are trained and motivated differently. They have different skills and lives. It has a totally different structure. Its IT systems are completely different and plugged into some of the most sensitive IT systems in the United Kingdom—to which the standard Police Scotland constable does not have access. In short, they are an elite. They are after passenger safety and suppressing terrorism, and they get a seven-figure sum every year just for dealing with their part of combating terrorism.

Police Scotland, as the noble Lord, Lord Forsyth, so eloquently said, is a very troubled organisation. I have had just two Police Scotland officers in my home in the past six months—one from Dundee and the other from Perth. The particular matters that they came to talk to me about took 30 seconds, but I spent probably an hour with them listening to the awful difficulties they are dealing with as morale has collapsed and management appears to be on the floor. To be transferring into chaos at this time of terror alert—let us remind ourselves how big the terror alert is—one of the functions that is trying to keep us safe is pretty

24 Feb 2016 : Column 378

irresponsible. The Scottish Government might be nationalists, but they are a pretty responsible bunch of people. Neither they nor the UK Government should really be contemplating that. Of course, with all the differences in staff, training and IT duties, it would be very difficult.

I would very much like to hear from the Minister why the no-detriment principle is not the trump card, and why the collection of very well thought through and interesting amendments that make up this group could not be put in place. They would be consistent with the Smith commission agreement; they would certainly be consistent with the no-detriment principle. The core, surely, of both the UK Government and the Scottish Government is the security and safety of the citizen with whom I started this short speech. There is an overwhelming case for the Government introducing something at Third Reading, and I look forward to hearing a little about what that might be.

Lord Wallace of Tankerness (LD): My Lords, 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 simple and straightforward sentence, but what lies behind it is actually very profound. My concern is that what is being proposed by the Government does not safeguard the functions of the British Transport Police if they are devolved. I respect and generally support the way it is being done in terms of exceptions to the general reservation under Part 2 of Schedule 5 to the Scotland Act 1998, but what we have heard is that the Scottish Government intend to put the British Transport Police under the ambit of Police Scotland.

I will not going to go into the woes of Police Scotland with the noble Lord, Lord Forsyth, and the noble Earl, Lord Kinnoull, who have both mentioned them, but even at its best one can readily imagine that once BTP comes under the auspices of Police Scotland, if you are the chief constable and you have problems and challenges with regard to resources, you might well think, “Well, why do we have a specific police presence in Waverley Station? Surely it can be covered by the police we have got who would otherwise be monitoring Princes Street?”. It would not be proper for politicians to interfere in the operational decisions of the chief constable. For operational reasons the functions of the British Transport Police under a different guise could be whittled away bit by bit.

Lord Forsyth of Drumlean: Of course there is also the complicating factor that part of the budget of the British Transport Police is actually paid for by the transport operators.

Lord Wallace of Tankerness: The noble Lord is absolutely right, and we aired these concerns when this was debated in Committee.

It is interesting to note in the submission made by the British Transport Police Federation to the Scottish Parliament Devolution (Further Powers) Committee that:

“In 2001, the government response to the DfT consultation which led to the BTPA’s creation … stated that: ‘The Government therefore considers that the national railway network is best

24 Feb 2016 : Column 379

protected by a unified police force providing a dedicated, specialist service and able to give proper priority to the policing of the railways’”.

The memorandum to the committee of the Scottish Parliament goes on to quote the Transport Select Committee of the other place in 2004, which,

“looked at the reforms to the BTP’s governance arrangements … It concluded that: ‘The British Transport Police is not a Home Office Force, and nothing we have heard suggests that it should become one. The railways are a specialised environment, with specialised needs, and need a specialised Force’. They continued: ‘The steady reduction of resources allocated to traffic policing leads us to agree with Her Majesty’s Inspectorate of Constabulary that unless there is a national force dedicated to policing the rail network, the task will not be given the priority it needs’”.

Our concern is that if, having devolved and lost control of this area and the Scottish Government exercise the devolved powers that they have to bring it under the direction of Police Scotland, the very concerns that were expressed by the BTPF and others will be borne out. The specialist services which the British Transport Police currently deliver could be lost over time, and therefore what the Smith commission argues is that the functions possibly could no longer be exercised.

Noble Lords have referred to a number of those functions, in particular tackling terrorism on our transport network. One I particularly note is that:

“The British Transport Police has created specialist teams with responsibility for the management of multi-agency support for local and national suicide prevention, mental health interventions and vulnerable persons encounters. An ongoing force-wide operation (Operation Avert) has so far achieved a 30% reduction in suicide attempts compared to the same period the year before”.

These are very profound specialist functions that the British Transport Police provide.

The Earl of Kinnoull: I think that we would all be very interested to hear the view of the noble and learned Lord on the quote that I read out about the no-detriment principle.

Lord Wallace of Tankerness: My Lords, one of the problems is that the no-detriment principle has so far tended to be looked at primarily in financial terms, but I think that the noble Earl is right that there are other detriments of a qualitative nature which he pointed out to the Minister. We could lose something of value. That would be to the detriment not just of Scotland, but of the whole country.

I share the views of other noble Lords that it is disappointing, despite the many concerns expressed in Committee, that the Government have not come forward with an amendment that would seek to address this. We owe a debt to the noble Lords, Lord Faulkner of Worcester, Lord Empey and Lord Forsyth of Drumlean, and to the noble Earl, Lord Kinnoull, who have sought to try to meet the Smith commission’s recommendation while ensuring that the specific functions of the British Transport Police are preserved.

I have some reservations about Amendment 41, which would be inserted at the end of Clause 42. Clause 42 fits the Smith commission’s arguments—it does devolve, in as much as it makes an exception—but my concern about Amendment 41 is that, having devolved, it seems to take back and would make it a requirement to have an agreement between the British Transport Police Authority and the Scottish Government.

24 Feb 2016 : Column 380

I prefer Amendment 42, which at least says that, if there is to be a police services agreement that applies in Scotland, Scottish Ministers should be involved, and that the oversight arrangements that the noble Lord, Lord Empey, spoke to—he indicated that they were over and above what was proposed—are consistent with the spirit and the letter of the Smith commission proposals, while trying to ensure that this is a practical way to address them.

I hope that when the Minister responds to the debate he will take on board that there are genuine concerns that a simple further exception to the reservations in Schedule 5 will not necessarily guarantee that the functions of the British Transport Police would necessarily be safeguarded after the devolution proposals put forward there. I therefore hope that the Minister, even at this late stage, will be prepared to come back and give some further thought as to how the functions can be properly safeguarded.

Lord Mackay of Clashfern (Con): My Lords, in my view the words used by the Smith commission on this subject do not imply the break-up of the British Transport Police so far as it operates in Scotland. It says that the functions of the British Transport Police shall be devolved. If the British Transport Police does not exist in Scotland, it will not have any functions that are devolved. That does not seem to make sense.

My second point is that if this provision is to be applied in a sense that the British Transport Police is not to function in Scotland, but would have some kind of associated unit in Police Scotland, there will be no chief constable responsible for operations of transport police in Scotland whose exclusive attention is devoted to transport. The chief constable of Police Scotland has some responsibilities other than transport, whereas the British Transport Police chief constable is devoted entirely to transport—the full attention of the most senior rank there is in the police is available relating to transport only. Transport is sufficiently important to merit the attention of a chief constable.

Lord Berkeley (Lab): My Lords, I support my noble friend Lord Faulkner’s Amendments 41 and 42. I certainly will not repeat the excellent speeches made in support of these and the other amendments this evening. I will emphasise one or two things: first, how different policing the railways is nowadays. The noble and learned Lord, Lord Wallace, mentioned Waverley station, which brings me to crowd control of, for example, football crowds. The British Transport Police has an enormous and excellent reputation in ensuring safety of passengers on the Underground and ways into the Underground, and has ways of keeping them safe on the platforms themselves so that the train does not run into them and they do not get pushed on to the track. There is, sadly, the ongoing issue of terrorism and people trying to do nasty things to the trains, which can be very dangerous. There was an incident last Friday in Belgium where somebody put some concrete blocks on the track of a high-speed line. Luckily, the train did not derail, but that can happen anywhere. Again, having the local police going along and dealing with that might be all right, but there is a good chance

24 Feb 2016 : Column 381

that it would not be all right. We have to ensure that this specialism is retained and preserved in whatever happens.

My noble friend Lord McAvoy seemed to be saying that we should give the Scots everything they want in this legislation. That is an argument I do not have particular views on, except on the railways. If we want to give them British Transport Police separated from the rest of the UK, why not give them the railway completely? Why not give them Network Rail? There is nothing in the Bill that says Network Rail is going to be owned in Scotland, or separated from the UK. It probably does not particularly matter who owns the railway, but there is the matter of timetabling.

I spent many years in various discussions across Europe trying to encourage passenger and freight trains to move across frontiers without stopping for hours, minutes or sometimes days because the timetable is not co-ordinated. Of course, that could happen here if the Government give the responsibility to Scotland for having a separate timetable. I am sure it would not happen, because we are not that stupid, but it seems to me that if we are going to keep the railways as an integrated whole, and not make all the Virgin trains stop at Carlisle for everybody to get out and get on to a different train, why separate the police?

The other issue of which we ought perhaps to remind ourselves, also mentioned by the noble Lord, Lord Forsyth, and the noble and learned Lord, Lord Wallace, is the question of who pays. We all know that Network Rail at the moment pays 50% of the cost of the British Transport Police and the train operators, passenger and freight, pay the other 50%—I declare an interest as chairman of the Rail Freight Group. If I were a train operator in Scotland and I found that the BTP did not exist there and any policing on the railways was being done by the local bobby, I would say to myself, and to the politicians, “Why do I, operating a train in Scotland, have to pay for policing the railway, such as it is, but if I operate a bus, a car or a lorry in Scotland, I do not have to pay?”. And I would not pay, because it is very out of balance between road and rail—I would probably get nothing for it either.

At some stage, someone is going to have to work out who is going to pay for the policing in Scotland that will no longer be done by the BTP. There is absolutely no reason why the rail passenger or freight customer should have to pay for whatever policing they get and the main competitor, which is road, should not have to pay. Maybe the Minister already has an answer to that.

Lord Forsyth of Drumlean: Surely, under the no-detriment principle, what was previously being paid by the transport operators to cover Scotland would need to be provided by the Scottish Government in a cheque to the British Transport Police south of the border.

Lord Berkeley: I entirely agree with the noble Lord: that is the way it should be done. The operators in England do complain, occasionally, about what they get for their money—the British Transport Police probably

24 Feb 2016 : Column 382

spends half its budget in London, because London is very important, with the Underground. The fact remains that they all accept this, but they do expect to get the specialist knowledge, albeit sometimes in support of the local police, who may get there first. They know that the BTP is there to provide the specialist knowledge and make sure that everything they do is done safely. I feel very strongly about this and I hope that the Minister will give us some comfort. If not, we will have to see what happens.

11.30 pm

Lord Dunlop: I particularly thank the noble Lord, Lord Faulkner. He always speaks on railway matters with such authority. I thank noble Lords for the other informed and authoritative contributions we have heard during this debate.

I think one thing is clear: all sides of the House are agreed that the British Transport Police does an excellent job of policing our railways. That is not in doubt. However, the issue this evening is whether this House will agree to devolve to the Scottish Parliament the functions of the British Transport Police in Scotland. As has already been said, the Smith agreement says:

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

The functions of the British Transport Police in Scotland are the policing of the railways in Scotland. The Smith Commission also stated in paragraph 19:

“Where the agreement provides that powers or competence in relation to a matter will be devolved, this is intended to mean a transfer of full legislative competence to the Scottish Parliament along with that of the associated executive competence to the Scottish Government”.

Clauses 42 and 43 devolve legislative competence in relation to railway policing in Scotland and designate the British Transport Police bodies as cross-border public authorities. This is devolution. It has been argued tonight that this aspect of the Smith agreement could be implemented in a different way by retaining the BTP as a single body but making it jointly accountable to Scottish Ministers and the Scottish Parliament. There is nothing in this Bill to prevent that outcome being achieved. The Bill does not dissolve the BTP. It does not mandate that the BTP should no longer operate in Scotland. It does not prescribe a model by which policing of the railways in Scotland should be carried out in future.

What the Bill does do is ensure that the BTP continues to operate in Scotland as now, unless and until the Scottish Parliament decides to pursue an alternative approach, and it ensures that Scottish Ministers are consulted on appointments to the BTP bodies. It will be for the Holyrood parties to set out in advance of the elections what their approach to the BTP in Scotland will be. The Scottish Conservative manifesto for the Holyrood elections will contain a clear commitment to retain a single nationwide British Transport Police—not absorbed into Police Scotland—but a BTP made more accountable to Scottish Ministers and the Scottish Parliament.

Lord Forsyth of Drumlean: I very much hope that the Scottish Conservatives will win more seats at the election but I am not anticipating them becoming the Government of Scotland. My noble friend must know

24 Feb 2016 : Column 383

that Scottish Ministers have made it clear that they intend break up British Transport Police if they have the power to do so, and to amalgamate it into Police Scotland. Therefore, is it not a little disingenuous to imply that what the Bill provides will not threaten the integrity of the British Transport Police? It will indeed.

Lord Dunlop: I can assure my noble friend that I will not turn myself into Mystic Meg tonight and make a prediction about the Scottish elections. I am making a broader point because I think the real point is that embracing devolution means trusting the Scottish Parliament to act responsibly with the powers it is given, and respecting the ability of people in Scotland to hold its representatives to account. I fear that for this House to decline to support this provision would send out a clear message to Scotland that we do not trust its Parliament and the ability of people in Scotland to hold it to account. Should the Scottish Government and Scottish Parliament press ahead to legislate for, and implement, a different model for policing the railways in Scotland, and to integrate the functions of the BTP with Police Scotland, I believe it is reasonable to expect the two Governments, working together, to be able to put in place the necessary arrangements to ensure that the service remains as effective as it is today, that the transition is seamless and protects the interests of people on both sides of the border, and that there is no detriment.

Counterterrorism has been specifically referred to. I want to address that directly. The BTP currently undertakes counterterrorism policing of the railway. This includes a range of operational measures and deployments designed to mitigate and manage the terrorist threat. General policing is already devolved and arrangements already exist between Police Scotland, the BTP and Home Office police forces to ensure the effective delivery and co-ordination of policing, and we would clearly expect these to continue under any new model. The Scottish Government already work with a range of partners, including the United Kingdom Government, Police Scotland and the British Transport Police, to ensure that Scotland is protected from a range of threats, including terrorism. There are well-established national procedures in place for policing across regional and functional boundaries, and these will certainly continue to apply.

Going back to what I was saying about ensuring that the service remains as effective as it is today, that is what has happened with every act of devolution since the Scottish Parliament was set up in 1998. Officials are meeting regularly and both Governments are committed to working constructively and effectively on the detailed arrangements needed to enable the transfer of functions to take place. A senior-level joint programme board to lead and oversee the work to integrate the BTP in Scotland into Police Scotland, should the Scottish Government decide to press forward after the election in May, has been established by the two Governments and includes representatives of the two police authorities. The terms of reference for the joint programme board will be formalised following the Scotland Bill receiving Royal Assent, and I will be happy to share these with noble Lords. Once the Scottish Government have finalised their plans for

24 Feb 2016 : Column 384

the future model of railway policing, I will be happy to update the House on implementation plans. Before this, the Scottish Government have made clear their intention to engage with key partners and staff representatives to ensure that the specialist railway policing skills and expertise of British Transport Police officers and staff in Scotland are maintained.

I hope noble Lords will not press their amendments and will allow this provision to proceed. Of course, I will reflect on the discussions that have taken place but I cannot undertake to commit to any amendments.

Lord Empey: If I understood the Minister correctly, does he seriously believe that even after efforts have been made to fix something that is not broken, the service provided subsequent to the Scottish Parliament taking over this function is going to be better than the service that is provided now? I accept that civil servants, working together, will patch something up. They are good at that and they will do their job to the best of their ability but nobody can say that the service will be better. The problem is ensuring that it is even as good and that will take years because of the personnel movements, the skill loss—people will have to be retrained. This is all totally nugatory work, for no good purpose to the people of these islands.

Let us call a spade a spade. This is a political thing through and through. There is no other dimension to it. The Minister may have given no undertaking but he has at least agreed to reflect on this. We ought to at least take that into account. This will not produce a better service than we have. What we are trying to do is prop up and secure something close to what we already have.

Lord Dunlop: I will repeat what I said: it is entirely possible to put in place the necessary arrangements to ensure that the service remains as effective as it is today.

Lord Faulkner of Worcester: My Lords, this has been an extraordinary debate. The hour approaches midnight and we have been debating the British Transport Police in Scotland for more than an hour, with an extraordinary range of very well-informed, powerful speeches on these amendments. I thank everybody who has taken part in the debate.

Obviously, there is not time to go through each of the speeches but the most important point the noble Lord, Lord Forsyth, made was that this is a United Kingdom issue, not just a Scottish issue. The noble Earl, Lord Kinnoull, talked about the no-detriment principle. I do not think that we got an answer on that from the Minister. The noble Earl also asked for a commitment to some form of government amendment at Third Reading; we were told that that will not be offered.

I should thank the noble Lord, Lord Empey, for bringing this issue up in the first place in Committee because it was not spotted in the other place when the Bill went through there. It was his tabling of the amendment in Committee that allowed us all to realise what was actually being proposed for transport policing in Scotland. His point is that this is an attempt to fix a problem which does not exist and that there is nothing

24 Feb 2016 : Column 385

wrong with the operation of transport policing at the moment. To make these changes is free of neither risk nor cost.

The noble and learned Lord, Lord Wallace, talked about the functions not being properly safeguarded and the possibility of security being diminished. The noble and learned Lord, Lord Mackay, made a very important point about what the Smith commission said on the subject, which is not consistent with what is being proposed in the Bill. My noble friend Lord Berkeley, using his great experience from the railways, talked about the specialism of the British Transport Police.

I would like to be able to say that the Minister came some way towards meeting all these very important points but I honestly do not think that he did. If we allow the Bill to go through in its present form, and do not make our voices clear tonight that we are very unhappy with what is to happen not just in Scotland but to transport policing throughout the United Kingdom as a result of this change, we will regret that. With great reluctance at this very late hour, I therefore beg leave to test the opinion of the House.

11.41 pm

Division on Amendment 41

Contents 7; Not-Contents 22.

24 Feb 2016 : Column 386

Division No.  3


Berkeley, L. [Teller]

Empey, L.

Faulkner of Worcester, L. [Teller]

Forsyth of Drumlean, L.

Gordon of Strathblane, L.

Kinnoull, E.

Rogan, L.


Ashton of Hyde, L.

Bates, L.

Chisholm of Owlpen, B.

Courtown, E.

Dunlop, L.

Eaton, B.

Evans of Bowes Park, B.

Finn, B.

Gardiner of Kimble, L. [Teller]

Geddes, L.

Grantchester, L.

Keen of Elie, L.

Lyell, L.

McAvoy, L.

McFall of Alcluith, L.

Mackay of Clashfern, L.

Moynihan, L.

Norton of Louth, L.

Seccombe, B.

Selkirk of Douglas, L.

Taylor of Holbeach, L. [Teller]

Younger of Leckie, V.

The Deputy Speaker: My Lords, as it appears that fewer than 30 Lords have voted, in accordance with Standing Order No. 57, I declare the Question not decided, and the further proceedings on the Bill stand adjourned.

Consideration on Report adjourned.

House adjourned at 11.52 pm.