Railway Policing (Scotland) Act 2017

2017 asp 4

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 27th June 2017 and received Royal Assent on 1st August 2017

An Act of the Scottish Parliament to make provision about the arrangements for the Police Service of Scotland to police railways and railway property; and for connected purposes.

Arrangements for railway policing

1 Provision for policing of railways and railway property

(1) After section 85 of the Police and Fire Reform (Scotland) Act 2012 insert—

“CHAPTER 12A POLICING OF RAILWAYS AND RAILWAY PROPERTY

Railway policing agreements

85A Railway policing agreements

(1) The Authority may enter into a railway policing agreement (referred to in this Chapter as an “RPA”) with a railway operator.

(2) An RPA is an agreement relating to the policing of a railway or railway property which, in particular, includes provision requiring—

(a) the Police Service to police the railway or railway property in accordance with any agreement reached (or determination made) under section 85K, and

(b) the railway operator to pay to the Authority such sums as the Authority may charge in respect of the policing which is to be (or has been) provided.

(3) The Authority must involve the chief constable in the negotiation of an RPA and the chief constable must provide the Authority with such assistance as it may reasonably require in that regard.

(4) Before entering into or varying an RPA under this section, the Authority must obtain the approval of the Scottish Ministers.

85B Acceptable charging under an RPA

(1) The charges that the Authority may make under an RPA may—

(a) include amounts calculated by reference to expenditure which is incurred, or expected to be incurred, otherwise than directly in connection with the provision of the policing concerned, and

(b) take account of overpayments or underpayments in respect of previous financial years.

(2) Nothing in section 85A or this section permits the making of any charge for policing which exceeds the cost of providing that policing.

85C Power to require railway operators to enter into an RPA

(1) The Scottish Ministers may by regulations require—

(a) a railway operator, or

(b) railway operators of such description as may be specified in the regulations,

to enter into an RPA within such period (if any) as may be specified in the regulations.

(2) The Authority must take reasonable steps to enable a railway operator to comply with a requirement imposed by virtue of subsection (1).

(3) Before making regulations under subsection (1), the Scottish Ministers must consult the railway operator or operators who are to be subject to the regulations.

Disputes

85D Referral of disputes to the Scottish Ministers

(1) The Authority or a railway operator may refer a dispute falling within subsection (2) to the Scottish Ministers.

(2) The disputes which fall within this subsection are—

(a) a dispute where—

(i) the parties cannot agree the terms to be included in an RPA, and

(ii) the failure to agree is likely to cause (or has caused) a breach of a requirement imposed by regulations under section 85C,

(b) a dispute about—

(i) whether an RPA should be varied, or

(ii) the terms of such a variation,

(c) a dispute about the construction or operation of an RPA.

85E Preliminary powers of Scottish Ministers to resolve disputes

(1) This section applies where a dispute has been referred to the Scottish Ministers under section 85D(1).

(2) Before appointing a person under section 85F(2)(b) or (as the case may be) section 85G(2) to determine the dispute, the Scottish Ministers may—

(a) require a party to the dispute to take such steps as the Scottish Ministers specify to resolve the dispute,

(b) make a determination that a party must make a payment in respect of any costs incurred by the Scottish Ministers, the other party or another person in connection with the taking of such steps.

85F Disputes about terms to be included in an RPA

(1) This section applies to a dispute falling within section 85D(2)(a) which has been referred to the Scottish Ministers under section 85D(1) (and has not been resolved).

(2) The Scottish Ministers may—

(a) determine the dispute themselves, or

(b) appoint a suitable person to determine the dispute (“the appointed person”).

(3) The Scottish Ministers or, as the case may be, the appointed person—

(a) must, before determining the dispute, give each party to the dispute an opportunity to make representations, but

(b) may otherwise decide the procedure for determining the dispute.

(4) In a determination under this section, the Scottish Ministers or, as the case may be, the appointed person—

(a) must specify the terms to be included in the RPA,

(b) may make an award of expenses against a party.

(5) Where a determination under this section specifies the terms to be included in an RPA, those terms are to be treated as if they had been agreed as part of an RPA entered into between the parties under section 85A.

85G Disputes about variation, interpretation or operation of an RPA

(1) This section applies to a dispute falling within section 85D(2)(b) or (c) which has been referred to the Scottish Ministers under section 85D(1) (and has not been resolved).

(2) The Scottish Ministers must appoint a suitable person to determine the dispute (“the appointed person”).

(3) The appointed person—

(a) must, before determining the dispute, give each party to the dispute an opportunity to make representations, but

(b) may otherwise decide the procedure for determining the dispute.

(4) In a determination under this section, the appointed person may—

(a) vary the terms of the RPA which forms the basis of the dispute,

(b) decide how any term of the RPA is to be construed or operated,

(c) decide that, in accordance with an RPA, a party must pay a specified sum or a sum assessed in a specified manner to the other party,

(d) make an award of expenses against a party.

(5) Where a determination under this section varies the terms of an RPA, those terms are to be treated as if they had been agreed as part of an RPA entered into between the parties under section 85A.

85H Appeals

A party to a dispute referred to the Scottish Ministers under section 85D(1) may appeal to the Court of Session against any determination made under section 85E(2)(b), 85F or 85G.

85I Enforcement of determination

A determination made under section 85E(2)(b), 85F or 85G may, with the permission of the Court of Session, be enforced as it if were a judgment of that court (and may, in particular, be enforced by the use of powers in relation to contempt of court).

Engagement with railway operators

85J Railway policing management forum

(1) The Authority must establish and maintain a forum for it and the chief constable to engage on a regular basis with relevant railway operators and relevant trade unions about the policing of railways and railway property in Scotland.

(2) For the purposes of this section and section 85K, a “relevant railway operator” is a railway operator which is a party to an RPA, or is subject to a requirement to enter into an RPA under regulations made under section 85C.

85K Agreement of railway policing priorities, objectives etc.

(1) The Authority must, for each yearly period beginning on 1 April, take steps to agree with relevant railway operators and the chief constable—

(a) the priorities and objectives for the policing of the railways and railway property in Scotland,

(b) the proposed arrangements for policing the railways and railway property in order to meet those priorities and objectives (and the means by which performance may be assessed), and

(c) the expected overall costs involved in providing such arrangements.

(2) In the absence of an agreement being reached under subsection (1), the Authority, in consultation with the chief constable, is to determine the matters described in paragraphs (a) to (c) of that subsection.

(3) Section 36 applies to any agreement reached (or determination made) under this section as it applies to an annual police plan.

Engagement with railway users etc.

85L Engagement with railway users and other interested persons

(1) The Authority must make arrangements to obtain the views of the persons and bodies listed in subsection (2) about the policing of railways and railway property in Scotland.

(2) The persons and bodies are—

(a) passengers on the railways,

(b) employees of railway operators,

(c) constables (of all ranks),

(d) police staff,

(e) relevant trade unions,

(f) the Police Federation for Scotland,

(g) such persons or bodies as appear to the Authority to be representative of senior officers,

(h) such persons or bodies as appear to the Authority to be representative of superintendents (including chief superintendents), and

(i) such other persons and bodies as the Authority considers may have an interest in the policing of railways and railway property in Scotland.

Interpretation

85M Meaning of words and expressions used in this Chapter

(1) In this Chapter—

• “expenses” means—

  (a)

  the legal or other expenses incurred by the Scottish Ministers or the person appointed to determine the dispute under section 85F(2) or 85G(2) (including the expenses of making the appointment), and

  (b)

  the legal or other expenses incurred by a party to the dispute,

• “railway” is to be construed in accordance with section 67(1) of the Transport and Works Act 1992,

• “railway property” means—

  (a)

  a track,

  (b)

  a network,

  (c)

  a station,

  (d)

  a light maintenance depot,

  (e)

  a train used on a network or any other railway vehicle on a network,

• “railway policing agreement” (and “RPA”) has the meaning given by section 85A.

• “relevant trade unions” means those trade unions which appear to the Authority to be representative of—

  (a)

  employees of railway operators, and

  (b)

  police staff.

(2) For the purposes of this Chapter, a reference to a railway operator is a reference to a person who has the management or control, or participation in the management or control, of all or any part or aspect of a railway or railway property.

(3) For the purposes of this Chapter, the expressions used in the definition of “railway property” in subsection (1) are to be construed in accordance with sections 82 and 83 of the Railways Act 1993 (interpretation).”.

(2) In section 125 of the Police and Fire Reform (Scotland) Act 2012 (subordinate legislation)—

(a) in subsection (2), for the words from “An” to “is” substitute “Orders or, as the case made be, regulations made under section 10(2), 11(5) or 85C(1) are”,

(b) in subsection (4), for “, and any regulations or” substitute “or regulations, and any”.

2 Chief constable’s functions in relation to policing of railways and railway property

In section 17 of the Police and Fire Reform (Scotland) Act 2012 (chief constable’s responsibility for the policing of Scotland)—

(a) in subsection (2)—

(i) the “and” after paragraph (f) is repealed,

(ii) after paragraph (g) insert—

“(h) is to provide the Authority with such assistance as it may reasonably require in the negotiation of railway policing agreements (see section 85A(3)) and participate in the forum established under section 85J.”,

(b) in subsection (4)(b)—

(i) the “and” after sub-paragraph (ii) is repealed,

(ii) after sub-paragraph (iii), insert—

“(iv) a railway policing agreement entered into by the Authority under section 85A(1).”.

Power of entry in respect of railway property

3 Power of entry in respect of railway property

After section 20 of the Police and Fire Reform (Scotland) Act 2012 insert—

“20A Constables: power to enter railway property

(1) A constable may enter any railway property which is used for or in connection with the provision of railway services—

(a) without a warrant, and

(b) if necessary, using reasonable force.

(2) For the purpose of this section, railway property is anything which is, or forms part of—

(a) a track,

(b) a network,

(c) a station,

(d) a light maintenance depot, or

(e) a railway vehicle (located on or in anything in paragraphs (a) to (d)).

(3) Nothing in this section confers on a constable the power to enter a dwelling.

(4) For the purpose of this section, “railway services” and the expressions in paragraphs (a) to (e) of subsection (2) are to be construed in accordance with sections 82 and 83 of the Railways Act 1993 (interpretation).”.

Functions which are no longer to be exercisable in Scotland

4 British Transport Police Authority functions

The functions of the British Transport Police Authority which are conferred by Part 3 of the Railways and Transport Safety Act 2003 are no longer exercisable in or as regards Scotland.

5 British Transport Police Force functions

The functions of constables of the British Transport Police Force (including those of the Chief Constable, deputy Chief Constable and assistant Chief Constables) which are conferred by Part 3 of the Railways and Transport Safety Act 2003 are no longer exercisable in or as regards Scotland.

Transitional provision

6 Limitation on redeployment of constables

(1) Subsection (2) applies to a constable of the Police Service of Scotland who—

(a) immediately before the transfer date, is a constable of the British Transport Police Force (including any such constable who is, at that time, engaged in service outwith that force), and

(b) is transferred to the Police Service of Scotland on the transfer date by or under an enactment.

(2) A constable to whom this subsection applies—

(a) is to be assigned duties that relate to the policing of a railway or railway property, and

(b) must not be assigned duties that do not so relate unless it is necessary to meet a special demand on resources for policing.

(3) If a constable to whom subsection (2) applies is, on the transfer date, engaged in service outwith the Police Service of Scotland, the limitation in subsection (2) is suspended until such time as the service outwith the Police Service of Scotland ends.

(4) Subsection (2) ceases to apply to a constable if, on or after the transfer date, the constable gives the chief constable written consent to the lifting of the limitation imposed by that subsection.

(5) In this section—

• “chief constable” means the chief constable of the Police Service of Scotland,

• “policing” has the meaning given by section 99 of the Police and Fire Reform (Scotland) Act 2012,

• “railway” and “railway property” have the meanings given by section 85M of that Act,

• “transfer date” means the date on which the enactment which transfers the constable to the Police Service of Scotland provides for the transfer to occur.

General

7 Ancillary provision

(1) The Scottish Ministers may by regulations make any incidental, supplementary, consequential, transitional, transitory or saving provision they consider appropriate for the purposes of, in connection with or for giving full effect to this Act.

(2) Regulations under this section may—

(a) modify any enactment (including this Act),

(b) make different provision for different purposes.

(3) Regulations under this section which contain provision adding to, replacing or omitting any part of the text of an Act are subject to the affirmative procedure.

(4) Otherwise, regulations under this section are subject to the negative procedure.

8 Commencement

(1) This section, section 7 and section 9 come into force on the day after Royal Assent.

(2) The other provisions of this Act come into force on such day as the Scottish Ministers may by regulations appoint.

(3) Regulations under this section may—

(a) include transitional, transitory or saving provision,

(b) make different provision for different purposes.

9 Short title

The short title of this Act is the Railway Policing (Scotland) Act 2017.