Commentary on Sections Schedule 1: The NCA & NCA Officers
99.Paragraph 1 provides that the NCA will carry out its functions on behalf of the Crown. In form, the NCA will be a crown body without incorporation. The NCA will be classified as a Non-Ministerial Department.
100.Paragraph 2 places a duty on the Director General to secure that NCA functions are discharged efficiently and effectively.
101.Paragraph 3 identifies the financial year of the NCA and includes a transitional provision whereby the first financial year of the Agency begins on the day that the NCA is formally established (by virtue of the commencement of section 1) and ends on the following 31 March.
102.Paragraph 4 provides that the NCA will be able to charge for any service it provides to a person at their request.
103.Paragraph 5 provides that for the purposes of the discharge of NCA functions which relate to organised or serious crime, the NCA may carry on activities in relation to any kind of crime (sub-paragraph (1)). This enables the NCA to tackle other crimes that are not serious and/or organised where the outcome will support the disruption or other mitigation of an organised crime group or another serious and/or organised crime. Sub-paragraph (2) provides that an NCA officer designated with operational powers is not prevented from exercising their powers in relation to a crime that is not serious or organised where they reasonably suspect that an offence is about to be or is being committed.
104.Paragraph 6 preserves the role of the Lord Advocate in respect of the investigation and prosecution of crime in Scotland. The NCA may only carry out its activities in relation to an offence which it suspects has been committed (or is being committed) in Scotland, if it does so with the agreement of the Lord Advocate (sub-paragraph (1)). In carrying out such activities in Scotland an NCA officer must comply with any directions from the Lord Advocate or the procurator fiscal (sub-paragraph (2)). And if an NCA officer suspects an offence has been committed or is being committed in Scotland the NCA officer must notify the procurator fiscal as soon as is practicable (sub-paragraph (3)).
105.Paragraph 7 provides for the selection and appointment of the Director General. The Director General is to be appointed by the Secretary of State (in practice, the Home Secretary) following consultation with Scottish Ministers and the Department of Justice in Northern Ireland. The terms and conditions of appointment are to be determined by the Secretary of State, save that sub-paragraph (6) provides for a maximum term of up to five years (there is no bar on re-appointment). The provisions in sections 10 to 14 of the Constitutional Reform and Governance Act 2010, which governs the appointment of civil servants, will not apply to this appointment (sub-paragraph (7)). Appointment will be on merit and the process will be conducted in accordance with the Code of Practice on Public Appointments as set out by the Commissioner for Public Appointments.
106.Paragraph 8 provides that the Home Secretary may require the Director General to retire or resign in the interests of efficiency or effectiveness, or by reason of any misconduct. Before calling upon the Director General to retire or resign, the Home Secretary must: write to the Director General setting out his or her reasons for so doing; give the Director General the opportunity to make written representations; and consider any such representations made by the Director General. The Home Secretary must also consult Scottish Ministers and the Department of Justice in Northern Ireland.
107.Paragraph 9 provides that the Director General is responsible for the selection and appointment of other NCA officers and determining their terms and conditions (with the agreement of the Minister for Civil Service), in accordance with the Civil Service Management Code and any other Civil Service policy set by the Minister for the Civil Service.
108.Paragraph 10 provides that the Director General may delegate his or her functions to a designated senior NCA officer. A designation may extend to one or more senior NCA officers. A senior officer means an NCA officer who is at, or above, a grade specified for this purpose by the Home Secretary in the framework document (which is dealt with in Part 1 of Schedule 2). The power to delegate is subject to any restriction or limitation on the exercise of the function, for example, the Director General’s functions in respect of directed tasking under section 5.
109.Paragraph 11 ensures that the role and responsibilities of the Director General will not be affected by a change in the individual holding the office of Director General. Additionally, it provides that any NCA officer may take up the role and/or responsibilities of any other NCA officer except the Director General.
110.Paragraph 12 provides that where a person already holds an office with operational powers on becoming an NCA officer – such as the office of constable, officer of Revenue and Customs, or immigration officer – that office is suspended whilst that person remains an NCA officer. The office held is revived once the person ceases to be an NCA officer and returns to his or her previous service. These provisions cease to apply to a person who resigns from or ceases to hold their original office. The effect of the suspension provided for in paragraph 12 is that a person is not bound by their office whilst serving as an NCA officer. The only exception is the office of special constable or a constable in the Police Service of Northern Ireland (“PSNI”) Reserve, which a person may continue to hold without suspension while serving as an NCA officer.
111.Paragraph 13 provides for secondments/attachments to the NCA and establishes that individuals seconded into or attached to the NCA from other organisations will be NCA officers. It further provides that police officers on secondment or attachment to the NCA will be under the direction and control of the Director General. Paragraph 14 makes equivalent provision for the secondment of NCA officers to UK police forces.
112.Paragraph 15 provides for the NCA to be able to draw on the expertise and contribution of volunteer officers. Sub-paragraphs (1) to (3) provide for the Director General to select such persons for appointment on an unpaid and part-time basis, and for them to be known as “NCA specials”. The terms and conditions for the appointment are to be determined by the Director General. Sub-paragraph (4) provides that the unpaid nature of NCA specials does not prevent the reimbursement of expenses incurred; or the provision of subsistence, accommodation or training; or the payment of compensation for loss attributable to injury or death resulting from their activity as an NCA special. Sub-paragraph (5) provides that the Director General may designate an NCA special with the powers and privileges of a constable, but not the powers of a customs officer or immigration officer. Sub-paragraph (6) provides that an NCA special can only be designated with the powers and privileges of a constable in England and Wales and the adjacent United Kingdom waters, and not in Scotland, Northern Ireland or overseas. Sub-paragraphs (7) and (8) exclude NCA specials from some provisions applying to other NCA officers. Sub‑paragraphs (9) and (10) also exclude NCA specials from the effects of sections 13 and 14 relating to restrictions on the right to strike in relation to NCA officers holding operational powers, and the setting of pay and allowances.  Sub-paragraph (11) provides for the suspension of the powers of an NCA special whenever that person acts as special constable or a member of the PSNI Reserve. The effect of this provision is to ensure a person is not able to use the powers of an NCA special when he or she acts as a special constable or a member of the PSNI Reserve. Sub‑paragraph (12) provides that a person is not a civil servant by virtue of being an NCA special.