In re Shields (Respondent) (Northern Ireland)
25. Therefore I am in full agreement with the description given by Carswell LCJ in page 8 of the judgment of the Court of Appeal of the general relationship between the powers given by section 19 and the powers given by section 25:
26. However the issue at the heart of this appeal relates to section 22 of the 1998 Act, and it is convenient to set out its words again:
27. In some contexts the words "in accordance with" are properly understood to mean that a person must only act as he is instructed to act and within the ambit of those instructions. But in other contexts where a person has a power to act the words will mean that he is to act in compliance with such directions or instructions or regulations as are given or made, but provided he does not act in a way which is contrary to those directions or instructions or regulations, his freedom of action is not otherwise restricted.
28. The Court of Appeal gave the former meaning to the words "in accordance with" and Carswell LCJ stated at page 8 of their judgment:
29. I respectfully differ from this conclusion. The Promotion Regulations made by the Secretary of State contain virtually no guidance as to how the decision whether or not to promote an officer is to be made. Regulation 4 merely lays down certain conditions which have to be satisfied before a candidate is qualified for promotion, and Regulation 6 states that promotion shall be by selection, but does not state what the criteria are for selection. I do not consider that Parliament intended that the Chief Constable should have no power to supplement by a Force Order whatever provisions relating to promotion the Secretary of State decided to make by way of regulations under section 25(2)(b).
30. Counsel for the respondent accepted that the Chief Constable would have had power to give a direction to a promotion board that in deciding whether or not to promote a candidate they should take into account his or her powers of leadership and powers of initiative, and I think that the Chief Constable also had power to direct that a candidate should not be eligible for promotion if his or her sickness record did not meet the required standard.
31. I consider that the general scheme of the 1998 Act (and now of the 2000 Act) was to give the direction and control of the police force to the Chief Constable subject to any regulations which the Secretary of State might decide to make under section 25 pursuant to his duty under section 36 to exercise his powers under the Act in such manner and to such an extent as appeared to him to be best calculated to promote the efficiency and effectiveness of the police service. In discharging his functions of directing and controlling the police force the Chief Constable, as well as being subject to any regulations made by the Secretary of State, was also under a duty to have regard to the annual policing plan issued by the Police Authority and the statement of principles issued by the Secretary of State.
32. I further consider that the powers of the Chief Constable under sections 19 and 22 include power to give directions on matters relating to eligibility for, and selection for, promotion, and as I consider that subparagraph 9(2), (3), (4) and (5) of the Force Order do not conflict with, but rather supplement, the Promotion Regulations made by the Secretary of State, I would hold that the subparagraphs were lawful and were not ultra vires, and I am in full agreement with the observations made by my noble and learned friend Lord Bingham of Cornhill in paragraph 8 of his opinion. Therefore, for the reasons which I have given, I would allow the appeal and set aside the judgment of the Court of Appeal.
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