The extension of a new police superforce, which DUP MP Gregory Campbell and Home Secretary Theresa May had agreed was vital for Northern Ireland’s security and crime fighting capabilities, but which the SDLP MP Mark Durkan once feared could lead to the appointment of special constables here for the first time since the B Specials, has been given the green light at the Assembly.
The Assembly agreed on Tuesday (February 3) - despite continued opposition from Sinn Féin - to extend the National Crime Agency (NCA) to Northern Ireland.
Following Tuesday’s vote, the superforce, which has been described as a UK version of the US Federal Bureau of Investigation (FBI) and which under the Crime and Courts Act 2013 replaced the Serious Organised Crime Agency (SOCA) and the National Policing Improvement Agency (NPIA) in the rest of the United Kingdom in 2013, will soon have almost full application here.
But as it stands, some provisions still won’t apply.
For example, the Justice Minister David Ford will not be allowed to tell the PSNI to help the NCA or vice versa.
Although this is permitted in other parts of the United Kingdom paragraphs 14 and 15 of Schedule 3 to the Crime and Courts Act 2013, dealing with directed assistance, will not apply here.
Notwithstanding this exclusion, the Assembly did agree that a future Home Secretary may use Schedule 24 of the Crime and Courts Act 2013 to extend any relevant NCA powers the force wields elsewhere to Northern Ireland.
During the debate Justice Minister David Ford, was quick to assure members that any proposed extension by a Home Secretary would have to be approved by Parliament following consultation under a “super-affirmative procedure.”
The approval of the NCA extension on Tuesday came via a Private Members’ motion that was tabled by DUP MLA Alastair Ross.
Whilst speaking in support of the motion, Traditional Unionist Voice (TUV) MLA, Jim Allister, questioned why the Justice Minister couldn’t tell the PSNI to help the NCA, whilst his counterparts in Britain could.
He asked Mr Ross: “Could he explain why paragraphs 14 and 15 of schedule 3 to the Crime and Courts Act 2013 are not to be extended to Northern Ireland?
“Paragraph 15 would give the Minister of Justice the right to direct the PSNI to assist the NCA. Why should that power not be given, particularly since, under the legislation, it is a duty of a member of the PSNI to cooperate with NCA officers?
“Therefore, why are we not extending paragraph 15 of schedule 3? Why are we not applying it? Can any light be shed on that?”
Mr Ross replied: “I appreciate the Member’s intervention. He will know that there have been a number of negotiations on how we can get the NCA operating in Northern Ireland, and there are various areas in which the legislation will be implemented here slightly differently from the rest of the United Kingdom.
“It would be good to get to the point at which we get agreement in the House to have the NCA operational in Northern Ireland. I think that the PSNI is confident that it has the ability to work alongside the NCA in protecting the community here.”
Addressing the same point later, Justice Minister David Ford said: “In an exchange between Jim Allister and Alastair Ross, issues were raised about paragraph 14 of schedule 3.
“Paragraphs 14 and 15 deal with directed assistance from the PSNI to the NCA and from the NCA to the PSNI. I concluded at an early stage that, given the arrangements that we have for the policing architecture here, it was not appropriate for there to be any powers of ministerial direction. Therefore, they do not appear.”
Elsewhere in the debate, Mr Allister predicted that NCA officers would ultimately be able to act as PSNI officers in Northern Ireland.
Addressing Sinn Féin MLA Pat Sheehan Mr Allister stated: “I would like to explore Sinn Féin’s position. They tell us that they have signed up to the support of policing and the rule of law, but, whether they like it or not, it seems probable that the NCA will come into operation.
“Its officers will be able to operate as PSNI officers in Northern Ireland. The question for Sinn Féin, therefore, is this: will it support those officers and tell the community to support them in their operations as PSNI officers? That is the challenge to Sinn Féin.”
Mr Sheehan replied: “This is the first time I have heard that the NCA will be PSNI officers. My understanding is that it is a distinct organisation. The Member has information that I certainly do not have.”
Sinn Féin MLA Gerry Kelly claimed that a future Home Secretary could - under the Crime and Courts Act 2013 (National Crime Agency and Proceeds of Crime) (Northern Ireland) Order 2015 - impose any NCA power to Northern Ireland without any reference to Parliament or the Assembly.
He argued: “Under this order, the British Home Secretary can extend the power and remit of the NCA, without reference back to or the agreement of the Executive, the Assembly or even her own Westminster Parliament - she does not have to go back to it either.
“At any time, and she was urged to do so, the British Home Secretary could have chosen to remove that power or diminish its application, and that she did not is a difficulty.
“It also opens up a second question, which is to do with the relationship of the NCA with MI5 and other security services. Unfortunately, we have to deal with empirical experience that we have of what used to be called the ‘secret services,’ not just in the North but, more recently, in Iraq and Afghanistan.
“However, let us deal with Ireland. At the moment, MI5 has no arresting arm. The question is this: will the NCA then become that arresting arm?
“At the moment, when the PSNI takes over any operation, it is accountable under all the accountability mechanisms. That is the safeguard.”
But Justice Minister David Ford refuted Mr Kelly’s claims that the powers could be extended without reference to MPs.
He said: “Gerry Kelly asked about a potential counterterrorism role for the NCA.
“The Home Secretary and the Secretary of State for Northern Ireland have both said that that will not happen. Were there to be any such proposal, a super affirmative procedure is in place.
“It could not be introduced through the order-making powers in schedule 24: there is simply no vires for it.”
SDLP MLA Alex Attwood said his party’s support for the extension of the NCA followed negotiations to secure appropriate safeguards that should not have been necessary.
He said: “I make the point that this is a negotiation that the SDLP should never have had, because these NCA matters, which are now being put into law, were settled in the Patten negotiation, in the Police Acts and in the implementation of Patten’s 175 recommendations.
“When it comes to accountability, oversight and the ombudsman, these matters were settled nearly 15 years ago.
“Neither the SDLP nor anybody else should have come back to this negotiation, because these matters had been resolved previously.
“There should not have been any reason for any London Government to roll back, through the front or back door, that which had been achieved in the role of the PSNI, the authority of the Policing Board, the powers of the ombudsman and the new beginning to policing.”
Mr Attwood also claimed that his party had secured a PSNI veto over the operations of the NCA.
He also said the NCA would have to comply with the PSNI code of ethics and that the PSNI would be able to veto the NCA’s recruitment of agents and the use of other intelligence weapons and mechanisms
“More than that, the Police Ombudsman now has the full menu of powers necessary to ensure that he can take complaints in the devolved and non-devolved sectors about NCA conduct or activity.
“Therefore, as best we can, and far more than some would have suggested, we have recreated the powers of the Policing Board over the NCA and the primacy of the Chief Constable when it comes to the operational life of the NCA. That is no mean success in the past number of months,” he said.