Genevieve Lennon is Chancellor’s Fellow at the University of Strathclyde. For her latest book ‘Routledge Handbook of Law and Terrorism’ go to http://www.routledge.com/books/details/9780415870375/.
The Justice Secretary, Michael Matheson, announced in March that the functions of the British Transport Police (BTP) would be ‘integrated’ with Police Scotland. A consultation has been promised and it remains unclear what form this ‘integration’ will take. However it is clear that this radical decision was taken without public consultation or public – or at least publicised – debate. (One line in the Smith Commission does not constitute sufficient ‘debate’). This short blog aims to highlight some (although by no means all) of the issues that should be addressed in detail – and in public – whether through the consultation or otherwise before this radical step is taken.
It is first necessary to briefly describe the origins of the British Transport Police (BTP) and their jurisdiction. Their origins lie with the numerous railway police forces that mushroomed from the early 19th century and were later incorporated into four divisions under the Railways Act 1921 before being unified as the British Transport Commission Police in 1949. Today their jurisdiction encompasses railway tracks, networks, stations, light maintenance depots, land used for the purposes of or in relation to a railway, land in which a railway operator has a freehold or leasehold interest, and a purpose connected to a railway or to anything occurring on or in relation to a railway (Railways and Transport Safety Act 2003, s.31(1)).
This expansive jurisdiction means that the BTP’s ‘beat area’ can be somewhat unexpected, for example, it may extend to parts of the night-time economy that are sometimes found next to railway stations (on land owned by a railway operator). The BTP are also responsible for the London Underground and Docklands Light Railway, Croydon Tramlink, Tyne and Wear Metro services, the Glasgow Subway, Midland Metro services around Birmingham and the Channel Tunnel Rail Link. As of 1st January 2014, it comprised 2,906 police officers, 1,484 police staff, 369 Police Community Support Officers and 247 special constables (Department for Transport 2014).
What issues should be addressed in advance of devolving the BTP’s functions to Scotland?
The most fundamental question is whether the BTP’s functions are best carried out by a national force or by regional forces? This is not a new question. It has been asked in numerous reviews of the BTP carried out by the Department for Transport since the early 2000s. All concluded that the case remained for retaining a national, specialist railways police. Most significant was the 2004 review, coloured by the Metropolitan Police Authority’s (MPA) recommendation that the BTP’s functions be merged with those of the Metropolitan Police Service (MPS) (Transport Committee 2006). The MPS is the largest police force in the UK, with 31,000 officers (compared with Police Scotland’s 17,295), and service the largest population of any UK force – 8.6M (compared with 5.3M in Scotland). Of course, it does not cover as large a geographical area and, crucially, is not a national force.
It is worth considering in detail the grounds on which the MPA’s recommendation was rejected.
First, the Review found no evidence of detailed plans for assuming the BTP’s function, nor evidence of local consultation. Second, the MPA could not point to any shortcomings in the current arrangements. Third, no evidence was provided to support the MPA’s assertion that amalgamation would lead to cost savings. Fourth, the MPA appeared not to have considered the impact of such an amalgamation on the remainder of the BTP. Each of these questions is pertinent in relation to Police Scotland’s assumption of the BTP’s functions. None have been answered, at least publicly.
What about funding? This is likely to be a key issue. The BTP operate on a ‘user-pays’ model whereby the train operating companies, Network Rail and the freight companies must enter into a police service agreement with the BTP Authority (BTPA) that sets out the level of police resources that will be allocated and requires the operator to pay for these services. The costs reflect the level of policing attributed to that service user. Presuming this model will continue, how will these be split between Scotland and England and Wales? It will be straightforward for those operating solely in Scotland, however, what about the national train operators? How does one determine the level of policing for the Scottish parts of the London to Aberdeen line? Should it be divided pro rata based on distance? Should it be linked to passenger numbers? Perhaps the size of stations (with the implications for higher policing costs) should be relevant? Should the volume of crime matter? It may be more straight-forward for freight operators although, again, perhaps consideration should be given to risks rather than simply distance travelled? Should the volume of freight carried be relevant?
What about oversight? The BTP have always operated under a distinct oversight framework. The relevant Secretary of State is the Transport Secretary. The main civilian oversight body, the BTPA, has a more corporatist feel than equivalents such as the Scottish Police Authority (SPA). Notably, it must include at least four persons with experience of the railway service providers’ interests; four with experience of railway passenger’s interests; and one with experience of railway employee’s interests. It will be challenging to incorporate this within the SPA’s remit. If a separate body is retained, how will it operate? Will it, for example, continue to determine how much to charge the train operators?
There are also a number of practical issues. If the BTP are incorporated within Police Scotland, there will, presumably, be a change-over between them. Where will this happen? Carlisle and Berwick-upon-Tweed railway stations seem the obvious choices, but given both are in England perhaps other stations would be preferred. If this were to occur at smaller stations additional facilities (from detention facilities through office space) may be needed.
What about criminal offences committed in the other jurisdiction? Under the Criminal Justice Act 1994, s.137, a police officer from one UK jurisdiction who is in another UK jurisdiction can arrest a person suspected of committing an offence in the officer’s home country (eg an officer from Northumbria Police can arrest someone in the Scottish Borders on suspicion of committing an offence in Newcastle railway station). Under s.136 a warrant for arrest across the constituent countries of the UK may be executed by officers of the country of issue or the country of execution. However, Scottish police may not without warrant arrest a person suspected of committing an offence in England, nor vice versa. This may lead to problems regarding, at least some, ‘low-level’ criminal offences where arrest warrants would usually not be issued. Where previously the person would simply be arrested by the BTP now the ‘home’ police will need to issue an arrest warrant or cross the border to arrest them (bringing appropriate transportation for the detainee). None of these are interminable issues but illustrate some of the practical matters that merit attention.
What about access? Railway stations and the accompanying infrastructure are private property. As a general rule, the police cannot enter private property without the authorisation of the owner unless they suspect a criminal offence has, is or is about to occur. Presumably the current model will be replicated with statutory authorisation for the police enter property that forms part of the railway, as defined above, without a warrant, using force if necessary and whether or not an offence has been committed (see Railways and Transport Safety Act 2003, s.31(2)-(3)). But, should this power be granted to all police in Scotland? Should it be limited to those operating as ‘railway’ police?
While it is to be hoped that the consultation process will address these concerns, the fact remains that the cart was put before the horse. Such significant reform of the police should be taken after detailed – and public – review, involving all the relevant stakeholders and the public. The decision should not precede the consultation. It seems now too late to consider the impact of this move on the remainder of the BTP and the consequential effect on the safety and security of the British railways. It is possible that other police regions, such as the Metropolitan police area, will call for control over BTP functions. We may thus, apparently without due consideration, loose what has been repeatedly heralded as an efficient and necessary means of securing Britain’s railways. Alternatively, the BTP may take this as an impetus to expand their remit, albeit solely in England and Wales, and take on the mantle of the Protective Security Police – an idea mooted in 2010 but subsequently buried in the midst of austerity.
A final thought.
The Justice Secretary stated that Police Scotland carry out all policing functions in Scotland outwith the railways. This is not true. Two other national police forces operate in Scotland: the Civil Nuclear Constabulary and the Ministry of Defence Police. Watch this space.
Department for Transport (2014). ‘Triennial Review of the British Transport Police Authority: Part 1’. Department for Transport.
Transport Committee (2006). ‘Future of the British Transport Police’. HMSO.