House of Lords
|Session 2002 - 03
Publications on the Internet|
In re Shields (Respondent) (Northern Ireland)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
In re Shields (Respondent) (Northern Ireland)
THURSDAY 6 FEBRUARY 2003
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Hope of Craighead
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
In re Shields (Respondent) (Northern Ireland)
 UKHL 3
LORD BINGHAM OF CORNHILL
1. The question in this appeal is whether, as held by the Court of Appeal in Northern Ireland (Carswell LCJ, Campbell LJ and Sir John MacDermott), it was beyond the power of the Chief Constable of the Royal Ulster Constabulary (now the Police Service of Northern Ireland) to make the directions contained in paragraphs 9(2), (3), (4) and (5) of Force Order No 10/2001 dated 8 February 2001. For the reasons given by my noble and learned friend Lord Hutton (whose rehearsal of the facts and the relevant legislation I gratefully adopt), and in agreement with all my noble and learned friends, I conclude that it was not.
2. Section 36 of the Police (Northern Ireland) Act 1998 required the Secretary of State to exercise his powers under the Act in such manner and to such extent as appeared to him best calculated to promote the efficiency and effectiveness of the Northern Ireland Police Service. Subject to the Act, it was left to him to judge whether and how to exercise his powers. Section 25(1) of the Act gave him a wide-ranging, but in my opinion plainly discretionary, power to make regulations as to the government, administration and conditions of service of members of the force. This discretionary power extended (without prejudice to the generality of subsection (1)) to the matters listed in subsection (2)(a) to (l), including in subsection (2)(b) "the qualifications for appointment and promotion of members of the Constabulary", in understandable contrast to the requirement in subsections (3) and (4) that regulations "shall" be made to govern disciplinary procedures and appeals.
3. Section 19(1) of the 1998 Act entrusted the direction and control of the force to the Chief Constable, by whom (under section 22 of the 1998 Act) appointments and promotions to any rank in the force other than that of senior officer were to be made "in accordance with regulations [made by the Secretary of State] under section 25 [of the Act]". It would seem to me clear that if the Secretary of State had taken it upon himself to prescribe a detailed and apparently comprehensive code of regulations governing the procedures to be followed on making appointments and promotions, the criteria to be satisfied, the qualities to be sought and the grounds of disqualification, the power of the Chief Constable to give directions in this field would have been, despite the broad language of section 19, very severely constrained, perhaps to vanishing point. But the Secretary of State did not do so. The Royal Ulster Constabulary (Promotion) Regulations 1995 (SI 120/1995), which continued to have effect under the 1998 Act, were notably brief. Regulation 4, "Qualifications for promotion", laid down examination, service and age standards necessary for promotion to the ranks of sergeant and inspector. Regulation 6 provided that promotion from one rank to another should, with very limited exceptions, be by selection. Thus promotion was to turn on merit, not seniority or length of service, but no criteria were prescribed to govern the choice, as between candidates possessing the minimum qualifications, and no indication was given of what would weigh in favour of or against particular candidates. The basis upon which the selection exercise was to be conducted was left open.
4. It is plain from material before the lower courts and before the House that the Chief Constable faced a serious management problem in the high incidence of absence from duty due to sickness, which was not only costly but also damaging to morale and operational efficiency. He responded by promulgating the detailed Force Order of which four sub-paragraphs are subject to challenge. The effect of those sub-paragraphs was (subject to mitigating factors, of which the suffering of injury on duty is probably the most obvious) to debar from consideration for promotion officers whose absences from duty on account of sickness exceeded a prescribed level. The Chief Constable no doubt regarded the absence of those holding higher ranks as more damaging than that of those holding lower ranks, and no doubt wished to encourage ambitious officers to keep their absences to a bare minimum.
5. The Court of Appeal rejected the argument, advanced by Inspector Shields in that court (but not at first instance, where this issue was not raised at all), that the power conferred on the Secretary of State by section 25 of the 1998 Act precluded any intervention by the Chief Constable in the field covered by the section. The court was, in my respectful opinion, plainly correct. Section 25(1) could scarcely have been expressed in more comprehensive terms. To hold that section 25(1) and (2) precluded intervention by the Chief Constable to regulate "the government, administration and conditions of service" of the force, whether the Secretary of State had exercised his discretionary power to make regulations or not, would emasculate the responsibility placed on the Chief Constable by section 19.
6. The Court of Appeal, however, held that the vires issue was concluded in favour of Inspector Shields by the requirement in section 22 of the 1998 Act that promotions should be made by the Chief Constable "in accordance with" regulations made by the Secretary of State under section 25. This was the main thrust of the argument for Inspector Shields before the House: by making regulations 4 and 6 of the 1995 Regulations the Secretary of State had exercised his power to regulate the process of promotion; the Chief Constable could not act inconsistently with the Secretary of State's prescribed rules, nor could he add to them; section 22 required compliance, no more and no less; the challenged paragraphs were ultra vires because they introduced criteria not laid down by the Secretary of State.
7. This is an attractive argument but I cannot accept the full breadth of it. I readily accept, as did counsel for the Chief Constable, that if and to the extent that the Secretary of State has exercised his power to make regulations governing promotion the Chief Constable may not make any direction which would contradict or undermine the Secretary of State's prescription. But the obligation on the Chief Constable is, in my opinion, to make promotions in accordance with regulations made by the Secretary of State under section 25 if and to the extent that the Secretary of State has made such regulations. Where, as here, the Secretary of State has chosen to exercise his regulatory powers in a very limited way, it is open to the Chief Constable to fill in the gaps provided he does so in a way which is not, directly or indirectly, inconsistent with the Secretary of State's prescription: see, for example, Taylor v Chief Constable of the Royal Ulster Constabulary (unreported, 26 September 1986, Hutton J). If the Secretary of State is unhappy with the Chief Constable's direction, he has the power to override it by regulation.
8. I consider this to be the correct interpretation of this legislation. It also seems to me to yield the best administrative solution. It permits the Secretary of State to lay down what he or she considers to be the important ground rules, while leaving questions of detailed management to the judgment of the officer responsible and accountable for the performance of the force. In the present case, it enables what might otherwise be unarticulated bars to promotion to be the subject of consultation, debate and clear public statement. It enables the Chief Constable to tackle, openly, a problem which any conscientious chief officer of police would wish to address.
9. I would for these reasons, and those given by Lord Hutton, allow the appeal and make the order which he proposes.
10. I have had the advantage of reading in draft the speeches prepared by my noble and learned friends Lord Bingham of Cornhill and Lord Hutton. For the reasons which they give I too would allow the appeal and make the order which Lord Hutton proposes.
LORD NICHOLLS OF BIRKENHEAD
11. I agree that for the reasons given by my noble and learned friends Lord Bingham of Cornhill and Lord Hutton this appeal should be allowed.LORD HOPE OF CRAIGHEAD
12. I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Bingham of Cornhill and Lord Hutton. I agree with them, and for the reasons which they have given I too would allow the appeal and make the order which Lord Hutton proposes.
13. The work of police officers in seeking to combat lawlessness and to protect citizens from violence and from damage and loss to their property is often stressful and, not infrequently, dangerous. The work of police officers in Northern Ireland has been particularly stressful and dangerous during the past 30 years when the members of the Royal Ulster Constabulary, now the Police Service of Northern Ireland, have faced murderous attacks and widespread violence from terrorist organisations. In consequence many police officers in Northern Ireland have suffered injuries and stress-induced illnesses which have rendered them unfit for duty. However, in addition to such injuries and illnesses, police officers also suffer from the ordinary types of illness which affect other citizens. In respect of such illnesses suffered by police officers in Northern Ireland there has been growing official concern over a number of years about the levels of absence from work which is claimed to be due to sickness. The concern is described in an affidavit sworn on 26 June 2001 by Mr Robert McDowell who was the Head of Administration Resources and Estates of the Royal Ulster Constabulary, in which he refers to a Force Order issued by the Chief Constable on 8 February 2001 after a period of discussion and consultation intended to address this concern and entitled "Managing Attendance Policy".
14. In his affidavit Mr McDowell states:
15. The Force Order is a lengthy document which contains 15 paragraphs. Paragraph 9 relates principally to the effect of sickness absence on applications for promotion and it provides as follows:
16. The respondent is an Inspector in the Police Service of Northern Ireland and held a similar rank in the Royal Ulster Constabulary. On 11 March 2001 she applied for promotion to the rank of Chief Inspector. Pursuant to Section 9(3) of the Force Order it was decided that she was ineligible to apply for promotion because she had failed to satisfy the attendant criteria stipulated in paragraph 9(3). An appeal panel set up to consider appeals by individual officers against findings of ineligibility rejected an appeal by the respondent. Her appeal was reconsidered a short time later but was again rejected.
17. The respondent brought an application for judicial review in the High Court claiming a declaration that paragraph 9 of the Force Order was unlawful and ultra vires. The application was brought on a number of grounds which included the claims that paragraph 9 was in breach of Article 8 of the European Convention on Human Rights and in breach of the respondent's legitimate expectations. Kerr J rejected all of the grounds relied on by the respondent and dismissed her application. The respondent then appealed to the Court of Appeal (Carswell LCJ, Campbell LJ and Sir John MacDermott) which permitted the respondent to advance a new point not argued before Kerr J, which was that the Chief Constable had no power to make provisions as to eligibility and qualifications for promotion and that the only power to make such provisions was given to the Secretary of State for Northern Ireland by Section 25 of the Police (Northern Ireland) Act 1998. The Court of Appeal held that this argument was correct and made a declaration that subparagraphs (2), (3), (4) and (5) of paragraph 9 of the Force Order were ultra vires and void and also issued an order of certiorari quashing the decision of the appeal panel that the respondent was ineligible for promotion to the rank of Chief Inspector. The Chief Constable now appeals to the House against the decision of the Court of Appeal.
18. The relevant provisions of the Police (Northern Ireland) Act 1998 which fall to be considered are the following. Section 17 provided:
Section 19 provided:
Section 22 provided:
Section 73(1) provided:
Section 25 provided:
Section 36 provided:
Section 37 provided:
the Secretary of State shall issue a statement of the principles on which the policing of Northern Ireland is to be conducted."
19. Section 25(1) and (2) of the Police Act (Northern Ireland) 1970 contained provisions similar to those contained in section 25(1) and (2) the Police (Northern Ireland) Act 1998 and under Section 25 of the 1970 Act the Secretary of State on 21 March 1995 made the Royal Ulster Constabulary (Promotion) Regulations 1995 which came into operation on 1 May 1995. Regulation 4 contained provisions relating to qualifications for promotion of a constable to the rank of sergeant and for promotion of a sergeant to the rank of inspector as follows:
(Paragraph (2) related to service in the fingerprint branch.)
(Paragraph (4) related to the fingerprint branch.)
Regulation 6 provided:
Regulations 9(2) and (4) related to accelerated promotion courses for sergeants and inspectors.
Pursuant to section 17(2) of the Interpretation Act 1978 these Promotion Regulations continue in force at the present date.
20. Many of the provisions of the 1998 Act (but not section 25) have been repealed by the Police (Northern Ireland) Act 2000 and replaced by similar sections in that Act, but the relevant sections of the 2000 Act did not come into operation until 4 November 2001, and as the decision that the respondent was ineligible for promotion was taken before that date the issue continues to be governed by the provisions of the 1998 Act.
21. The Secretary of State and the Chief Constable are both given wide powers in respect of the police force of Northern Ireland. Section 25 gives the Secretary of State power to make regulations in respect of the police force, and section 19 gives the Chief Constable power to issue orders to the police force by providing that the police force shall be under his direction and control, although I express no opinion as to the precise limits of this power.
22. In my opinion the power given to the Secretary of State by section 25(2) to make regulations in respect of a wide range of matters affecting the police is a permissive power which he may or may not choose to exercise as he thinks right having regard to his duty under section 36. The use of the word "may" in section 25(2) in contrast to the use of the word "shall" in section 25(3) and (4) makes this clear. I further consider that the wording of section 36 does not impose a duty on the Secretary of State to exercise the power under section 25(2) to make regulations in respect of the entire range of matters set out in the subsection: this is not a case to which the principle in Padfield v Minister of Agriculture, Fisheries and Food  AC 997 applies. I do not consider that Parliament intended that the Secretary of State should be under a duty to make regulations to deal with all the many aspects of police work and its organisation set out in section 25(2).
23. Therefore if, for example, the Secretary of State did not make regulations pursuant to section 25(2)(h) as to the duties which are or are not to be performed by members of the police force, the Chief Constable clearly had power under section 19 to make orders in respect of the duties to be performed.
24. If the Secretary of State made regulations under section 25(2), the Chief Constable would not have had power to issue orders under section 19 which would conflict with those regulations. For example, if the Secretary of State had made a regulation providing that the number of police officers attached to a police station should never exceed 25, the Chief Constable would have had no power to issue an order that 30 officers should be attached to a particular station. But provided that an order issued by the Chief Constable did not conflict with a regulation made by the Secretary of State, I consider that the Chief Constable would have had power to issue an order which supplemented the regulation. Accordingly, if the Secretary of State had made a regulation under section 25(2)(e) providing that every police constable should undergo firearms training once a month, the Chief Constable would have had power to issue an order giving directions as to the number of rounds to be fired in each training session.