Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019

Lord Faulkner of Worcester Excerpts

Tuesday 29th January 2019 Grand Committee

Over and above that, the noble Lord, Lord Adonis, alluded to the issue of consultation. Consultation was held with a whole series of exit groups, but one has to see the consultation or discussions in the context of what I have just explained. We are not talking about the comparison between no EU exit and EU exit. That is not a relevant comparator for our present purposes or for the purposes of this instrument for the reasons I have sought to explain. The comparator, as shown in the impact assessment, is between leaving without changing the statute book and leaving with the necessary and relevant changes to the statute book. That is where we engaged with the Law Society, the Bar, the Family Law Group, Resolution and firms from the magic circle in order that we could be clear about which direction we had to take. There is only one direction to take. In any event, we have to put the statute book into proper order if we exit with no deal. We cannot simply retain the Brussels Ia regime when we are not a party to it. It just does not make sense. To that extent, I hope I have been able to address the points raised by noble Lords. It is in these circumstances that I commend the draft instrument to the Committee.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

My Lords, it might be helpful if I remind the Grand Committee that this afternoon we are merely considering the regulations, not approving them. Whatever the Grand Committee decides, the regulations will need to be approved in the Chamber, and Members will have the opportunity to debate and vote on it there if they so wish.

Motion negatived.

Scotland: Transport Policing

Lord Faulkner of Worcester Excerpts

Tuesday 18th December 2018 Lords Chamber

Asked by

[Lord Faulkner of Worcester]

To ask Her Majesty’s Government what discussions they have had with the Scottish Government about the future of transport policing in Scotland.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, the Scotland Act 2016, following the Smith agreement, devolves responsibility for railway policing in Scotland. Noble Lords will be aware that the Scottish Government have announced that, although full integration of British Transport Police into Police Scotland remains a long-term ambition, other options are now being explored. We continue to work with the Scottish Government as they develop their plans, and we remain committed to ensuring the continuing effectiveness of railway policing across the network.

[Lord Faulkner of Worcester (Lab)]

My Lords, I suspect that the Minister agrees with me that merging Police Scotland with British Transport Police was not the greatest proposal in the Smith commission report, and it is a pity that we did not stop it when we had a chance in 2014. Since then, an enormous amount of time, effort and money has been spent, particularly on things like consultancy fees—Police Scotland paid £700,000 to Ernst & Young—to pursue something which not only makes no sense in policing terms but which would have reduced the safety of the travelling public on trains between Scotland and England. Can the Minister confirm that the joint programme board is now focusing on retaining the role of the BTP in Scotland and enhancing statutory accountability to the Scottish Government through the British Transport Police Authority, and does he also agree that that is exactly what many of us in the House have been asking for over the last four years?

[Lord Duncan of Springbank]

In response to the noble Lord’s first question, he may very well say that; unfortunately, the Government could not possibly comment. On the second point he raised, we have taken a long journey and have passed through many deep and dark tunnels—

Northern Ireland: Executive and Assembly

Lord Faulkner of Worcester Excerpts

Monday 25th June 2018 Lords Chamber

[Lord Duncan of Springbank]

There will be a significant increase in the funding for the National Health Service in Northern Ireland. It has been deemed one of the areas that requires significant investment. To ensure that money is spent wisely, we will be relying on the Civil Service of Northern Ireland. I would much prefer that the answer to the question was not the Civil Service but rather politicians. If my noble friend will permit it, I will give him the exact figures in a written response.

[Lord Faulkner of Worcester (Lab)]

My Lords, the Minister will know that one of the sticking points for an agreement is the status of the Irish language. Is he not able to point out to the DUP that as minority languages are accepted as equals in Scotland and Wales, there is absolutely no reason why the Irish language should not be accepted in Northern Ireland?

Civil Liability Bill [HL]

Lord Faulkner of Worcester Excerpts

Report stage (Hansard): House of Lords
Tuesday 12th June 2018 Lords Chamber

[Lord Sharkey]

My Lords, Amendments 32 and 39 return to the issue of cold calling, the problems of which we have debated on many occasions in this House. Our latest attempts to curb the menace of cold calling became law with the passing of the Financial Guidance and Claims Act, but, despite frequent debates and new laws, there remains significant uncertainty as to whether our current set of regulations is as effective as it should be. In particular, as we said in Committee, we are concerned at the extent to which cold calling will continue to drive fraudulent claims for RTA whiplash injuries. The Commons Justice Committee shares these concerns. Paragraph 133 of its 15 May report says:

“We conclude that the Government’s current package of reforms creates a risk of increasing cold calling by, or on behalf of, CMCs; we welcome the restrictions on cold calling in the Financial Guidance and Claims Act, but believe they do not go far enough and that an outright ban should be introduced. In the meantime, we recommend that the Government monitor the effectiveness of the proposed restrictions, particularly on calls from overseas, and that technical remedies are urgently explored to tackle any loopholes that might be exploited by overseas operators to circumvent the restrictions; we ask that the Government report to us on progress with this within a year of the proposed restrictions being implemented”.


In Committee we discussed amendments that would require an assessment of the real-world effect of all the current regulations trying to prevent cold calling. We also discussed the possibility of trying to cut off the revenue streams of cold callers by banning the commercial use of data so collected. I think that the Minister understood our concerns: he acknowledged, as he did again this afternoon, what he referred to as, “the problem of regulating the unregulated”. He mentioned that the Government were seeking to approach this problem by regulating the use of material gathered by cold calling, and we entirely support this approach. There is a widespread unease that we have not really cracked this problem yet—and I believe that the Minister shares at least some of this unease.

Our Amendments 32 and 39 do two things. First, they give the Minister the opportunity to address the House once again on the issue of whiplash and cold calling. Secondly, they propose yet another method of coming at the problem of cutting off the revenue stream of cold callers. Clause 4 sets out new rules against settlement of whiplash claims before medical report. Amendments 32 and 39 extend these rules to cover whiplash claims arising from cold calling. Amendment 32 does this by making it a breach to settle without seeing appropriate evidence that the claim does not arise from cold calling. Amendment 39 allows the Lord Chancellor to specify the form of any evidence required to demonstrate that the claim does not in fact arise from cold calling. Both amendments mirror the provisions in the Bill to ban pre-med settlements.

I realise, as I think we all do, that clamping down on cold calling is a difficult and complex business—but it is also vital. I hope that Amendments 32 and 39 will suggest to the Government a way forward in their attempts to cut off revenue streams and I very much look forward to the Minister’s reply. I beg to move.

[The Deputy Speaker (Lord Faulkner of Worcester) (Lab)]

I advise the House that if Amendment 32 is agreed I shall not be able to call Amendments 33 and 34 for reasons of pre-emption.

[Lord Beecham]

My Lords, I shall speak very briefly to the amendments in my name and that of my noble friend Lady Chakrabarti. There is not, I think, a great deal of difference across the House on the need to ensure that there are proper medical reports and that the MedCo website should be used. The amendments would allow the Government to employ others with medical qualifications, in addition to MedCo, if that was thought to be helpful. Our amendments expressly state that there must be appropriate medical evidence of injury. The amendments are fairly straightforward: we do not dissent from those of the noble Lord, Lord Sharkey, and we hope that the Government will look sympathetically on the amendments here.

European Union (Withdrawal) Bill

Lord Faulkner of Worcester Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

I will make one final point. I dare say it will be said by the Government on this subject that Francovich will not be appropriate after we have left the Union because we will not be part of it any more and the whole purpose of Francovich is to provide a remedy to those who are disadvantaged by the non-observance of Union law in the European Union. My view is that we should make sure that those people who currently enjoy those rights and remedies—which is all our citizens—should continue to enjoy them in respect of the same laws as they do at present, in other words in respect of retained law. There could be a very reasonable and attractive agenda that would say that we should extend the Francovich principle from a Union law or a retained law to the generality of law in this country—British law, English law, Scots law et cetera. I would be very much up for that and in favour of it, but I see that as slightly complicating the issue and I fear that I shall be told that this Bill is not the right vehicle—that is probably correct—in which to achieve that purpose. But my purpose is to make sure that we continue to have the rights that we enjoy today—and if we accept the amendment we will achieve that.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

My Lords, I must advise the Committee that if this amendment were agreed to, I would be unable to call Amendments 44 or 45 for reasons of pre-emption.

[Lord Carlile of Berriew (CB)]

My Lords, for those of us who have real enjoyment in the law, a nice bit of law at three minutes past midnight is rather like a comforting, calm, creamy cup of cocoa, but I recognise that not everybody is of the same view. With that in mind, I propose to elide in the remarks I am going to make comments on Amendment 45, which appears in my name and that of the noble Lord, Lord Lucas, and on Amendments 48 and 50, which appear with the same names. That should save time in a few minutes because I understand that we intend to complete that group as well.

These amendments are designed to retain the so-called Francovich principle. I congratulate the noble Lord who has just spoken on summarising it very well. I will add a little bit of flesh on it because I wish to try to tease out of the Minister a welcome response to those of us who seek to preserve at least part of the Francovich principle, although I would happily pass to him the burden of perfected drafting.

In the Gina Miller litigation, in which the noble and learned Lord and my noble friend Lord Pannick played starring parts, the Government in their submissions place considerable weight on their intention to enact what was then called a “great repeal Bill”. As the Supreme Court understood it, that Bill would—and this is a quotation from the majority judgment at paragraph 34,

“repeal the 1972 Act and, wherever practical … convert existing EU law into domestic law at least for a transitional period”.

Surprisingly, in relation to the Francovich principle, there has been no conversion and no transition. I ask the Minister to explain whether that really is the position that the Government wish to maintain.

The Francovich principle is a principle of existing EU law which requires damages to be available where three conditions are met: first, that the rule infringed was intended to confer rights on individuals—I am sure that we would all applaud that; secondly, that the breach was sufficiently serious to give rise to a legal action, which I am sure we would also applaud; and, thirdly, that there was a direct causal link between the breach of the obligation resting on the defendant and the damage sustained by the injured party, and I am sure that we would all applaud that, too. Perhaps the Minister would explain why he wants to get rid of that principle.

To provide a little more explanation for the fascinated non-lawyers here, who may just about be in a majority—

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[The Deputy Chairman of Committees]

The noble Lord must move the amendment before he can withdraw it.

[Lord Carlile of Berriew]

I beg to move. Can I withdraw it now?

[The Deputy Chairman of Committees]

It is the property of the Committee until the noble Lord obtains its permission to do so.

Amendment 48 withdrawn.

European Union (Withdrawal) Bill

Lord Faulkner of Worcester Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

Amendment 20 not moved.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

I cannot call Amendment 20A, as it is an amendment to Amendment 20.

Clause 3 agreed.

Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2017

Lord Faulkner of Worcester Excerpts

Wednesday 10th January 2018 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

My Lords, the noble and learned Lord may be correct about the train having left the station, but I remind him that during the passage of the Scotland Act as it now is many of us warned about this problem—and he himself made a speech exactly saying that. But such was the political imperative from some people not to be seen doing anything that would cause an upset with the Scottish nationalists that we allowed this to go ahead. The result is that we are looking at the prospect of the destruction of an organisation that has served this United Kingdom well for more than two centuries. Is it two centuries, or over two centuries?

[Lord Faulkner of Worcester (Lab)]

Since 1826.

[Lord Forsyth of Drumlean]

Since 1826. Okay, so it is almost two centuries—certainly since there were first proper means of crossing the border at speed.

I just find it extraordinary. What can possibly be driving this? What can be the motivation? At a time when we are threatened by lone-wolf terrorists, travelling around the country, when we have seen attacks in Glasgow, Manchester and Birmingham, what on earth could be driving this? Why would someone want to break up an organisation which has a proven track record of success, which has shown great expertise, and which is specialist in its nature? How will the practical problems be resolved? Does the policeman have to get off at the station as soon as the train reaches the border and someone else come on board? What is driving this? I have come to the conclusion that the answer lies in the name—the British Transport Police. This is the sort of ideological battle that we thought we had put behind us in Scotland being translated into something that threatens the security of people in Scotland and the rest of the United Kingdom.

--- Later in debate ---

[Lord Hope of Craighead]

My Lords, a curious feature of this measure is that if British Transport Police officers are brave enough to exercise their powers as British Transport Police officers north of the border, they are given the power to do that by paragraph 2 of Schedule 2. In fact, the paragraph is consistent with the idea that we do not go ahead with the merger at all. It is a perfectly sensible method of solving the problem which the Smith commission had to face up to, which was to say that the functions of the British Transport Police in Scotland will be a devolved matter. That is a perfectly sensible proposition. What has gone wrong is the Scottish National Party’s interpretation of it, as the noble Lord, Lord Forsyth, said.

For all the reasons that others have given, I am strongly against the merger. However, like the noble and learned Lord, Lord Wallace of Tankerness, I cannot see anything wrong with the order we are asked to consider. Therefore, if the Motion were pressed, I regret that I would have to vote with the Government because that is the state of play. However, I entirely sympathise with the plea of the noble Lord, Lord Foulkes, to the Minister. Given the practical example I have given to the Minister, I hope that he can point out to the Scottish National Party that it is a waste of public money to have two police officers travelling on the train from Newcastle all the way to Edinburgh and back again just to solve the problem of the merger which it is trying to advance.

[Lord Faulkner of Worcester]

My Lords, in opening the debate, the Minister referred to the degree of opposition to this proposal in this House. He was not wrong in that. He could also have mentioned the degree of opposition in the Scottish Parliament, most particularly among his colleagues in the Conservative Party, who are on record as opposing this proposal most vigorously, particularly Ruth Davidson. He could have included the Liberal Democrats and the Labour opposition in the Scottish Parliament as well. But above all, he should have mentioned the opposition of the British Transport Police and the British Transport Police Authority. When it gave evidence to the Scottish Parliament in March, it said that dealing with fatalities, for example, could take 50% longer under the new plans, and that,

“there is well-defined evidence that a non-specialist force is less able to provide the consistent levels of service that a dedicated policing commitment can offer”.

Decades of experience of dealing with IRA threats would be lost, and the work that the BTP undertakes as the lead authority on scrap metal theft across the whole of Great Britain would also be lost if this proposal went through.

Fortunately, there is an opportunity for the Scottish Parliament to think again about the model of devolution which it is putting forward. Indeed, it would have been helpful if this House had passed the amendment which a number of us tabled almost exactly two years ago, which made it clear that, while we were not opposed to devolution of transport policing in Scotland, that devolution should be on the basis that a force linked to the British Transport Police should be the agency that carries it out. I spoke to the chief constable of the British Transport Police, and he is entirely happy with that. Indeed, in its evidence to the Scottish Parliament the BTP said that it is happy to have a direct relationship with Scottish Ministers and with Holyrood. If it is necessary to change the name of the force in Scotland, for the reasons that the noble Lord, Lord Forsyth, referred to, that is possible—there is no reason why it should not be called “Transport Police Scotland” or “Scotland Transport Police”. Nobody is hung up on the name of the British Transport Police. What matters is that the job is done properly and in the most effective way.

[Lord Forsyth of Drumlean]

The noble Lord says that nobody is hung up on the name of the British Transport Police, but the Scottish National Party is.

[Lord Faulkner of Worcester]

The noble Lord is of course absolutely right.

I will finish by picking up one of the points that the noble Lord made and adding to it. He referred to the no-detriment principle in the Smith commission report. Principle 5 of that report says that the package of powers agreed through the Smith commission process should,

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

It is evident that there is a financial implication. There is also an implication for travellers travelling between England and Scotland, who will suffer a detriment, as a number of speakers in this debate have indicated. Therefore, when the Minister goes back to talk to the Scottish Government, he must take seriously the need for that no-detriment principle to be applied and impress on them that it certainly applies in this case.

Smith Commission Principles: Railway Policing

Lord Faulkner of Worcester Excerpts

Monday 18th April 2016 Lords Chamber

Asked by

[Lord Faulkner of Worcester]

To ask Her Majesty’s Government how they will ensure that the fifth principle contained in the report of the Smith Commission that the package of powers agreed through the Smith Commission process “should not cause detriment to the UK as a whole nor any of its constituent parts” will be complied with when railway policing is devolved.

[The Parliamentary Under-Secretary of State, Scotland Office (Lord Dunlop) (Con)]

My Lords, the Scotland Act devolves responsibility to the Scottish Parliament for the policing of railways in Scotland, and we are working with the Scottish Government to understand their plans. Maintaining high levels of service across the UK is at the forefront of our planning for an efficient and effective transfer of functions. There is absolutely no reason to think that devolution will degrade the level and effectiveness of railway policing.

--- Later in debate ---

[Lord Faulkner of Worcester (Lab)]

My Lords, that is all very well but this is a Question about the no-detriment principle in the Smith commission report. The British Transport Police Authority made it clear in its evidence to the Public Audit Committee of the Scottish Parliament that the safety and security of railway policing in England and Wales could be endangered and its costs increased if that force no longer had a role in Scotland. Surely there can be no greater example of a no-detriment principle applying than that one. Particularly bearing in mind what the noble Lord, Lord Dunlop, said at the Report stage of the Scotland Bill when he shared with us the news that the Conservative Party, in its manifesto for the Scottish elections, had decided that the BTP should continue to police the railways in Scotland after those elections, surely he could be a little more forthright in standing up for the no-detriment principle.

[Lord Dunlop]

My Lords, the noble Lord is absolutely correct that the Scottish Conservative manifesto supports the devolution of BTP functions in Scotland, as do all the parties that signed up to the Smith agreement. The principle of devolution is that the Scottish Government should be held accountable by the people who elect them, and I assure the noble Lord that the Scottish Conservatives and their leader, Ruth Davidson, will be very vigorous indeed in holding the Scottish Government to account for their decisions on the BTP in Scotland. To take the other aspect of the noble Lord’s question, if the Scottish Government decide to proceed with plans to integrate BTP functions within Police Scotland, the UK Government will of course work very closely with the Scottish Government to put in place robust operational arrangements to ensure that there is no detriment to any part of the United Kingdom.

--- Later in debate ---

[Lord Dunlop]

There are already collaborative arrangements in place between the BTP and Police Scotland. I think that as we put in place the new arrangements we will be looking to ensure that we build on those collaborative arrangements to ensure that there is a seamless operation of what is a very important service for the whole of the UK.

[Lord Faulkner of Worcester]

But who, my Lords, is going to decide whether the no-detriment principle applies? Is it going to be the British Parliament or the Scottish Parliament?

[Lord Dunlop]

As regards this issue, I go back to what my noble friend Lord Empey said. I am not sure whether he is in his place today, but he has great experience of these matters in Northern Ireland. He was absolutely confident that we could put in place effective working arrangements. However, he did caveat that by saying that it would take time to achieve that. It is certainly our view and expectation that it would take two to three years to ensure that there is a proper transfer of these functions.

Scotland Bill

Lord Faulkner of Worcester Excerpts

Monday 29th February 2016 Lords Chamber

Adjourned debate on Amendment 41.

[Lord Faulkner of Worcester (Lab)]

My Lords, on Wednesday night we had an hour-long debate on the role of the British Transport Police in Scotland. A number of issues remain unresolved and may be the subject of further amendments at Third Reading but meanwhile, as far as this afternoon is concerned, I beg leave to withdraw the amendment.

Amendment 41 withdrawn.

Scotland Bill

Lord Faulkner of Worcester Excerpts

Wednesday 24th February 2016 Lords Chamber

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.

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”.

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 the 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.

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[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 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.