Crime and Courts Act 2013 (National Crime Agency and Proceeds of Crime) (Northern Ireland) Order 2015

Baroness Williams of Trafford Excerpts

Tuesday 10th March 2015 Grand Committee

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[Baroness Williams of Trafford]

That the Grand Committee do consider the Crime and Courts Act 2013 (National Crime Agency and Proceeds of Crime) (Northern Ireland) Order 2015.

Relevant document: 22nd Report from the Joint Committee on Statutory Instruments

[Baroness Williams of Trafford (Con)]

My Lords, since it was created just over a year ago, the National Crime Agency has been operational across the UK, but its work in Northern Ireland has been greatly restricted because the Northern Ireland Assembly did not agree that NCA officers could use police powers and operate on matters that are devolved.

This means that our response to a national security threat—serious and organised crime—has been weakened. The specialist resources that the National Crime Agency has developed on child sexual exploitation, cybercrime and economic crime have not been available in Northern Ireland. The numbers of civil recovery cases are down and the National Crime Agency has been doing far less than SOCA did before it. The Police Service of Northern Ireland has had to stretch further to fill the gap.

Serious and organised crime groups do not operate in isolated pockets in each region. They do not respect borders or force boundaries. The Police Service of Northern Ireland estimates that there are between 140 and 160 organised crime groups active in Northern Ireland—an estimated 800 active criminals. Nearly a third of these groups are assessed as having international links. Another third are linked to crime elsewhere in the UK or in the Republic of Ireland.

The order that we are debating today changes matters. It enables the National Crime Agency to operate with full powers in Northern Ireland, including under the Proceeds of Crime Act 2002. The NCA will be able to work with the Police Service of Northern Ireland, providing expertise, denying criminals assets and ensuring that the people of the United Kingdom are all afforded the same protection by the National Crime Agency.

The order ensures that the National Crime Agency will operate in Northern Ireland with the clear, transparent and significant accountability that the Northern Ireland political parties have sought. It is worth setting some of this out in detail here. The order will ensure the primacy of the Police Service of Northern Ireland. A National Crime Agency officer will not be able to use constable powers without the prior agreement of the chief constable of the PSNI. This process will ensure that NCA officers must have regard to community impact assessments.

The use of covert techniques will also require the prior agreement of the chief constable of the Police Service of Northern Ireland. The director-general will be answerable to the Northern Ireland Policing Board and will be required to attend meetings of the board and provide it with information. The board will monitor the exercise of NCA functions in Northern Ireland.

Reflecting the arrangements already in place for the Police Service of Northern Ireland, the Police Ombudsman will have a role in overseeing the activities of NCA officers in Northern Ireland and investigating complaints against them.

The director-general will also be responsible for ensuing that all NCA officers working in Northern Ireland have read and understand the Police Service of Northern Ireland code of ethics. Wherever practicable, the code will be reflected in the disciplinary procedures applicable to NCA officers in relation to their exercise of functions in Northern Ireland.

The order will also allow the NCA the ability to recover criminal assets in relation to offences that are devolved, together with the ability to request the recovery of assets held overseas in civil recovery cases.

This is a comprehensive package of measures which enables the NCA to operate effectively in Northern Ireland, while meeting concerns about accountability, by putting the agency on a very similar footing to the PSNI. I commend the order to the Committee.

[Lord Rosser (Lab)]

Let me say, first, that we agree that the extension of the NCA’s power to Northern Ireland is a big step forward. I have one or two questions on the Explanatory Memorandum, but I raise them in the context of our agreement that we should be going down the road that is provided for in the order. I suspect that at least some, if not all, my questions will be because I have not fully understood the impact or significance—or lack of significance—of some things contained within the order.

My first question comes under that category of how significant or otherwise the order is. Paragraph 4.6 of the Explanatory Memorandum—I refer to the sentence starting with the last word on the second page—states:

“The effect of the extension of section 48(7) of the 2013 Act, and article 8(8) of the Order, is that these changes are deemed to always have had effect and so are retrospective”.

I am afraid that I have not been able to form a view in my own mind on what, in practical terms, is the effect of a change apparently being made retrospectively. Does that in reality have any impact on anybody or anything? How significant or otherwise is the reference to its being retrospective?

In paragraph 4.7 of the Explanatory Memorandum, the last sentence refers to the fact that,

“These provisions are not yet in force in Great Britain, and the effect of the extension of the provisions to Northern Ireland is that the provisions will be commenced by way of commencement order under the 2013 Act at a later date”.

If I have understood that correctly, the obvious question is: when is the later date? Are we talking about some time ahead or not?

Paragraph 7.1 is on the policy background to the issues that arose when we were discussing the 2013 Act, because the Northern Ireland Assembly would not pass a legislative consent Motion in respect of the provisions relating to the operation of the NCA in Northern Ireland. I just ask for confirmation—I think that this is what all the information in front of me implies anyway—that there are now no problems with any of the parties in Northern Ireland on that issue. Are they all at one with the road that we are going down as far as this order is concerned?

Paragraph 7.3 in the Explanatory Memorandum—once again, I am afraid that this comes into the category of my not understanding how significant or otherwise this is, and whether it means anything or does not really mean anything at all—refers to the fact that:

“The Order also makes modifications to the way ‘relevant NCA provisions’ will be exercised in Northern Ireland”.

I simply ask again: what are those modifications in practical terms? Do they mean anything of any substance, or are we talking about minor details?

Paragraph 7.4 then sets out some of the requirements. The first is:

“The requirement for the Secretary of State to consult strategic partners in Northern Ireland before setting strategic priorities for the NCA in Northern Ireland”.

Is it considered likely that those strategic priorities will be very similar for the NCA in the United Kingdom as a whole, or is it envisaged that there will almost definitely be strategic priorities that are very much related to Northern Ireland and not to anywhere else—and, if so, what kind of strategic priorities might they be if they are going to be significantly different from elsewhere in the United Kingdom?

Paragraph 7.4 of the Explanatory Memorandum refers to,

“The requirement for the Director General of the NCA to consult strategic partners in Northern Ireland when preparing an annual plan … including the Department of Justice in Northern Ireland … and obtain the consent of the Department of Justice in Northern Ireland before issuing any annual plan”.

So we have a scenario where, in setting the strategic priorities, it is for the Secretary of State to consult strategic partners, but the actual issuing of any plan seems to need the consent of the Department of Justice in Northern Ireland. Why is it that the strategic priorities and the preparation of the annual plan require consultation, but the issuing of any plan—which, presumably, is about implementing the strategic priorities—requires the consent of the Department of Justice in Northern Ireland? Is it potentially a blockage if, apparently, you cannot issue the plan unless you have the consent of the Department of Justice in Northern Ireland? Why is one part of it consultation, and why when it comes to the issuing of the plan is consent required? What is the significance of that?

Paragraph 7.5 states that the provisions are to include:

“A duty on a member of the PSNI or any other person operating in Northern Ireland charged with the duty of investigating organised crime or serious crime to co-operate with NCA officers in the discharge of NCA functions”.

Will there be any facility for the NCA to be able to second PSNI officers to assist them with their work in Northern Ireland, or will it always be done on the basis of co-operation rather than secondment?

My next question again probably comes under the category of not understanding the order fully. In paragraph 7.5, the fifth bullet point states:

“Those powers can only be exercised where a Northern Ireland general authorisation is in place and the powers are exercised in accordance with that authorisation”.

Is this order the general authorisation, or is the general authorisation something else that somebody has to give? If so, who is the person who has to give it? As I say, my question probably arises from not having fully understood what the order is saying.

Paragraph 7.5 goes on to say that the powers can be exercised also where,

“a general authorisation and an operational authorisation are in place and the powers are exercised in accordance with the operational authorisation”.

What can a National Crime Agency officer with powers and privileges of a constable not do in Northern Ireland that they could do in Great Britain with similar powers? Is there any distinction, or is the order simply giving them the same powers in Northern Ireland as they would have in the rest of Great Britain?

Paragraph 7.9—it is a fairly long paragraph, but I am referring to the seventh bullet point onwards, which is over the page—states:

“Paragraph 9 provides that the Director General must attend a meeting of the Northern Ireland Policing Board if given a reasonable period of notice … Paragraph 11 provides for inspections by the Chief Inspector of Criminal Justice in Northern Ireland. Those inspections must relate to NCA officers exercising NCA functions in Northern Ireland … Paragraph 14 provides that the Secretary of State must consult the Department of Justice in Northern Ireland before asking HMIC to carry out an inspection that relates specifically to NCA activity in Northern Ireland”.

Have I read that correctly? Can two inspectors, the Chief Inspector of Criminal Justice in Northern Ireland and HMIC, both carry out inspections of NCA activity and functions in Northern Ireland and, if so, why? If I have read it correctly—and I may have misunderstood it—why do we need both of them capable of carrying out inspections? If that is the case, is it not a bit of overkill?

Finally, under the heading “Impact”, paragraph 10.2 states:

“NCA officers in Northern Ireland are currently engaged in activity that does not require them to exercise the powers and privileges of a Northern Ireland constable”.

How many NCA officers are already engaged in activity in Northern Ireland and how many is it anticipated there will be once the powers in the order come into force?

[Baroness Williams of Trafford]

I thank the noble Lord, Lord Rosser, for his questions on the order. I will try to take them in the order in which they were asked.

The noble Lord asked first about the retrospective nature of the order and what the effect of that is. The retrospective effect is to reverse the effect of the Perry case in the Supreme Court, which prevented the pursuing of assets outside the UK belonging to those living outside the UK. The provision took effect in Great Britain when the Crime and Courts Act 2013 came into effect and is not new to, or specific to, Northern Ireland. It allows the NCA to pursue assets outside Northern Ireland, even in relation to ongoing existing investigations.

The noble Lord also asked about paragraph 4.7 and the later date regarding the timing of the provisions being in force in Great Britain. We are commencing the remaining provisions in the Crime and Courts Act 2013, which amends the Proceeds of Crime Act 2002, for Great Britain on 1 June 2015; for Northern Ireland we expect commencement in late 2015 and no date has yet been agreed.

The noble Lord also asked about the Northern Ireland Assembly’s consent. Consent to this order was given on 3 February, as was required by the Crime and Courts Act, with Sinn Fein voting against the action to give consent.

The noble Lord asked whether the strategic priorities would be different in Northern Ireland and about the annual plan, which obviously needs consent. The strategic priorities are the same across the UK and are kept under review; the annual plan is specific to Northern Ireland and contains much more detail. It will have an impact on the PSNI and therefore needs agreement.

The noble Lord also asked about Criminal Justice Inspection Northern Ireland and the HMIC seemingly having the same role. In fact, they have different functions. HMIC considers policing; the Chief Inspector of Criminal Justice will consider other aspects of activity.

The noble Lord also asked about PSNI co-operation and general authorisation. The PSNI works closely with the NCA and may second officers if appropriate; this is an operational decision. The general authorisation is agreed with the Northern Ireland Department of Justice and sets out any specific agreements that are necessary.

I may not have answered all the noble Lord’s questions. I am just about to answer another one. What can an NCA officer not do in Northern Ireland that he can do in the rest of Great Britain? He may only exercise the powers and privileges of a constable in Northern Ireland if the prior agreement of the chief constable is obtained. The requirements set out in Schedule 1 to the order need to be met. If they are met, then an NCA officer’s exercise of powers will be the same as in the rest of the UK.

I hope that answers most, if not all, the noble Lord’s questions.

[Lord Rosser]

I think that the Minister has effectively answered all of them, apart from the one on how many NCA officers there are currently engaged and how many it is anticipated there will be when the provisions of the order come in. Apart from that, I think that the noble Baroness has answered all my questions.

[Baroness Williams of Trafford]

I am very pleased to hear it. I have not got the exact figures; I am not sure we know the exact figures at this stage. I will certainly write to the noble Lord on that.

Motion agreed.