Railway, dock and canal police (RDC) and more recently the
British Transport Police have always suffered from a ‘legislation gap’. This is
a problem shared, in different forms, by other Non Home Department Police
Forces (NHDPFs). By this I mean that the legislation available
to these forces regularly inhibits, rather than supports, the proper functions
of the constables employed by them (i).
The most obvious example of this is the restricted jurisdiction of BTP
on which I have written elsewhere. It
would be tempting to regard all the idiosyncratic aspects of BTP’s legislative
status as an historical oddity and it is true to say that the roots of the current
position can be traced all the way back to the policy decisions made in the
nineteenth century. However, the
government continues to treat BTP (and other NHDPFs) with considerable suspicion. The history of the law as it touches specialist
areas of policing has become a little niche in the study of police history.
Sometimes governments just forget BTP and other NHDPFs. I once spent many weeks working on a problem
with the Road Traffic Act 1988. The
predecessor Act (RTA 1972) had been amended to include BTP in matters relating
to level crossings but the 1988 Act did not take account of the change and for
years there was a gap, which nobody noticed – until someone did (ii). However, most of these legislative gaps are
not the product of forgetful drafters.
They are created on purpose. They
make the legislative backdrop against which the NHDPFs operate extremely complicated. Law that is complicated when it doesn’t need
to be is a hinderance to keeping the peace.
This week the King gave his assent to the Public Order Act
2023. This is a controversial piece of
legislation that seeks to tackle certain types of disruptive protest such as ‘locking
on’ and tunnelling. Its availability
before the coronation may be a co-incidence. Amongst other things it creates
offences relating to the obstructing of major transport works (s6) and interference
with the use or operation of key national infrastructure (s7). Key National Infrastructure includes rail
infrastructure (s8 (3)). The Act also creates
a no suspicion power of stop and search (s11), similar to that which exists
under the Criminal Justice and Public Order Act 1994 (s60), in cases where a
senior police officer believes that offences under the Act may be committed and
that persons may be carrying prohibited objects – this is being loosely described
as going equipped to lock on etc.
Officers of the appropriate rank in Police Act 1996 forces
may authorise this power within their police area. BTP officers of the same rank may only
authorise it actually on railway premises.
Given that the Act is about preventing unlawful forms of protest this is
not very useful. A group of protesters
marching towards a railway station along a public road cannot be subject of a
s11 BTP authorised stop and search and it’s a bit late to attempt to search them
when they are already on the railway.
Even the ‘with suspicion’ power cannot be used by BTP constables on the
approaches to stations or other critical parts of the railway unless the
constable is content that s31 (1) (g) of the Railway and Transport Safety Act
2003 is engaged, ie that the officer is acting: “ for a purpose connected to a
railway or to anything occurring on or in relation to a railway”. Otherwise there are the provisions of s100 of
the Anti Terrorism, Crime and Security Act 2001. This section allows for BTP constables to act
off the railway subject to several tests being met, including the availability
of local officers. Altogether this amounts to a lot of hoops to
jump through and the potential for officers to get it wrong is increased by the
complexity of the legislation. Officers
in 1996 Act forces have no such concerns as they have the power of constable
throughout England and Wales.
The Public Order Act 2023 also amends the Public Order Act
1986 (an Act which has been tinkered with many times over the last 37 years)
with the intention of including BTP in the provisions relating to conditions on
assemblies and one person protests, but only within the railway. This retrospective inclusion of NHDPFs is
quite common and makes it difficult to track the legislative history of these
forces. Looking at a selection of legislation
over half a century one can see that powers at first denied to NHDPFs are later
extended to all or some of them because circumstances have shown that they need
them.
Harbours are included in the definition of Key National infrastructure ( s8 (6)) but
Harbour and Dock police forces are not given any powers under the Act. (iii).
Nuclear installations are not mentioned in the Act and
therefore the Civil Nuclear Constabulary (CNC) are not granted powers,
presumably on the grounds that they have sufficient powers under other
legislation. This may not be a safe
presumption.
The Ministry of Defence Police (MDP) are included in the
amendments to the 1986 Act but not in the powers in s11 of the new Act.
No NHDPF should attempt to interfere with matters that are
properly the concern of the local police force.
But they do need powers to discharge their duties. The Public Order Act 2023 is the latest in a
long line of Acts of Parliament that make the job of policing the railway (and
other locations covered by NHDPFs) more tricky than it needs to be.
The time has come for the legislative labyrinth that
surrounds NHDPFs to be cleared up. This
was supposed to have happened years ago – but a piecemeal approach to the
creation of new laws has made it worse.
Philip Trendall
May 2023
(i)
Much is
made of the fact that constables in forces maintained under the Police Act 1996
are not employees but holders of the office of constable. It is far from clear what the significance of
this is. The office will always trump
employment status. The long history of the Non Home Department Police forces
(NHDPFs) shows that it is possible to be both an employee and a constable. Indeed
this was confirmed as recently as 2003 when the current legislative framework
for the BTP was laid down. Some people hint that it is something to do
with impartiality. As this is guaranteed
by the wording of the attestation taken by all constables and is based on no
other evidence this view has some of the elements of an urban myth about it.
(ii)
I am pleased to say that it was spotted by
police officers and not by lawyers or even the public.
(iii)
Rather quaintly places that print newspapers are
included in Key National infrastructure. I don’t know many people who still buy
newspapers
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clients of my clients or employers.
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