Judgments - In re Shields (Respondent) (Northern Ireland)

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    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:

    "The ambit of the matters specified in section 25(1) in respect of which the Secretary of State can make regulations is very wide, the government, administration and conditions of service of members of the RUC. So expressed, it appears to cover a very substantial proportion of the running of the police service. If the Secretary of State had exclusive power to make regulations as to such matters, there would be relatively little room for the making of Force Orders on any subject. We do not consider that that could have been the legislative intention, for the issue of Force Orders is a sensible and practical way of dealing with many matters for which they are entirely appropriate, and we believe that they were in regular use in the RUC long before the enactment of section 25 of the 1998 Act. There appears accordingly to be some substance in the proposition advanced by Mr Maguire, that they are parallel powers. We shall not attempt in this judgment to define the limits of the Chief Constable's power to issue Force Orders, which would not be an appropriate method of making provision for some of the topics specified in section 25(2). Equally, it might be more appropriate for other topics to be dealt with by the more flexible means of the issue of Force Orders rather than the elaborate procedure of making regulations. It does, however, appear to be clear that if the terms of a Force Order conflict with those of a regulation, the latter must prevail."

    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:

    "Appointments and promotions to any rank in the Royal Ulster Constabulary other than that of a senior officer shall be made, in accordance with regulations under section 25, by the Chief Constable."

    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:

    "The present issue is concluded in favour of the appellant by section 22 of the 1998 Act (and now section 36(2) of the 2000 Act). Promotions are to be made in accordance with regulations under section 25. That in our view is intended to be exclusive, and Force Orders cannot validly prescribe matters relating to promotion. Paragraph 9 of the Force Order in question purports to do just that, by making officers with a sickness record of a certain level ineligible for promotion. We do not consider that the Chief Constable had power to issue a Force Order containing such provisions. If they are to be put into force, it will have to be done by regulation made under section 25."

    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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