Last week, I argued that the integration of the British Transport Police (BTP) Scottish Division into Police Scotland appears to be beset by problems and should be put on hold.
This would allow the Scottish Government to address the sizeable gaps in its evidence base: to clarify the operational and business case, weigh up the risks and fully work out the costs.
One of the most pressing unresolved challenges relates to BTP Scotland officers’ Terms and Conditions. Unlike Police Scotland officers, BTP officers are not Crown Servants. Rather, they are contracted employees in accordance with the Employment Rights Act 1996 (ERA). Application of the ERA is however tempered by the Railways and Transport Safety Act 2003, which confers Constable status on BTP officers. As various stakeholders have flagged up, this hybrid status adds a further layer of complexity to the merger. This convoluted statement by Police Scotland might well be read as a measure of the problem in hand:
As [BTP officers] move to be Crown Servants there will have to be provisions made in regulation in respect to their entitlements. Until such regulation is considered and agreed therefore it is not possible to fully outline the implications for transferring BTP Officers. Any changes proposed under regulations to effect the transfer therefore may result in variations from their current provision and it cannot be determined as to whether they will advantage or disadvantage an Officer. Further, it is unclear as to what measures may or may not be legislated for in respect to preservation of the current provisions in order to mitigate any impacts that could be experienced.
The Scottish Government state that BTP Scotland officers will become office holders accountable to the Chief Constable (that is, Crown Servants) in line with Police Scotland officers. To this end, the Government has put forward two broad options: either negotiating and agreeing the terms of transfer in advance; or, transferring BTP Scotland officers on their existing terms and conditions, and harmonizing these at a later stage.
To be clear, neither option is straightforward; moreover the transfer itself appears to be unprecedented. As the BTP Federation state: it is ‘unaware of any legal mechanism to transfer employee status to that of Crown Servants’. (On this point, it seems fair to suggest that the legal fees incurred will be sizeable).
Taking the first option, in practice the cost of buying out BTP Scotland officer benefits (which extend to free rail travel for officers and their families) may well be prohibitive. To complicate matters, the BTP Federation state that officers ‘who wish to continue employment in BTP Scotland could find a strong argument for a claim of redundancy.’ In this eventuality, it is likely that the financial liability would fall on the Scottish Government. Neither of these risks appear to be accounted for in the Scottish Government financial memorandum on integration.
The second option is also problematic, albeit in a different way. If BTP Scotland officers are transferred while initially maintaining their hybrid status, they may be left without representation: on the one hand, severed from the BTP Federation; on the other hand, potentially ineligible for Scottish Police Federation representation (by dint of their contracted status) and prevented from joining a union (by dint of their Constable status). By any standard, this would be unacceptable.
With only eighteen months until integration, the fact that the status of BTP Scotland officers transferring to Police Scotland remains unresolved should ring further loud alarm bells.
At this stage in the process, I’d argue that the Scottish Government would do well to take stock and decide what price it is prepared to put on this merger. That is, to revisit the expected benefits and, taking account of the evidence and risks to date, decide whether these genuinely outweigh the costs.