Shields,Re (Northern Ireland) [2003] UKHL 3

House of Lords

Case No SESSION 2002-03

Between

Shields,Re (Northern Ireland)Appellant

Before

Lord Bingham of Cornhill

Lord Browne-Wilkinson

Lord Nicholls of Birkenhead

Lord Hope of Craighead

Lord Hutton

Date 6 February 2003

[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. LORD BROWNE-WILKINSON My Lords,

[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 My Lords,

[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 My Lords,

[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. LORD HUTTON My Lords,

[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:

"3. As regards the policy, the background to its making lies in the need for the police to develop an ability to manage the issue of non attendance. Over the past 10 years the average days sickness per officer in the RUC has been as follows: 1992 14 1993 14 1994 13 1995 13 1996 14 1997 15 1998 16 1999/2000 21 2000/2001 22 In a league table of UK police forces, the RUC is bottom. I exhibit marked RM1 such a table which is based on Home Office statistics. It will be imperative, particularly in context of a downsized police force in Northern Ireland that the number of officers attending work is maximised." [This table shows that in 2000/2001 the average days sickness for officers in the RUC has been 22, whereas in other police forces in England and Wales the average days sickness per officer has not exceeded 15]. "4. The need to reduce levels of absence within the RUC has been referred to in recent years by a number of persons and bodies which have had reason to address the issue. In particular reference to this problem has been made by: (i) The authors of the Patten Report … (ii) The reports of Her Majesty's Inspector of Constabulary … These external sources have urged in general terms the introduction of an effective sickness policy to manage the issue of attendance at work."

[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:

"(1) Officers whose performance does not meet the required standard will be subject to a series of warnings, coupled with review periods. (2) Maternity related sickness will not be taken into consideration when determining eligibility for boards. (3) Candidates' attendance records will not be available to force boards. Officers whose attendance does not meet the required standard will not be eligible to apply for any board for a promotion or a transfer to a specialist or other post. This decision will be taken by the district commander/head of department. Any officer who has been absent from duty through sickness over the previous two years for an average of more than fourteen days per year, or who has had more than eight spells of sickness during the same period [unless circumstances as outlined in paragraph 9(4) apply] will not be eligible for any board. (4) All sickness absence, with the exception of maternity related sickness, will be taken into consideration in deciding whether any candidate is eligible for promotion or transfer. Where a candidate's record fails to meet the attendance criteria, mitigating circumstances will be taken into consideration. To ensure consistency, where there is doubt as to eligibility, the matter will be referred to the Chief Superintendent Personnel. (5) Officers whose application for a board is rejected on the basis of their attendance may make a personal appeal to the Chief Superintendent Personnel."

[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:

"(1) The Police Authority shall, before the beginning of each financial year, issue a plan ("the annual policing plan") setting out the proposed arrangements for the policing of Northern Ireland during that year."

Section 19 provided:

"(1) The police force shall be under the direction and control of the Chief Constable. (2) In discharging his functions, the Chief Constable shall have regard to— (a) the annual policing plan issued under section 17; and (b) the statement of principles issued under section 37."

Section 22 provided:

"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."

Section 73(1) provided:

" ' senior officer', in relation to the Royal Ulster Constabulary, means an officer above the rank of superintendent"

. Section 25 provided:

"(1) Subject to the provisions of this section, the Secretary of State may make regulations as to the government, administration and conditions of service of members of the Royal Ulster Constabulary. (2) Without prejudice to the generality of subsection (1), regulations under this section may make provision with respect to— (a) the ranks to be held by members of the Royal Ulster Constabulary; (b) the qualifications for appointment and promotion of members of the Constabulary; (c) periods of service on probation; (d) voluntary retirement of members of the Constabulary; (e) the conduct, efficiency and effectiveness of members of the Constabulary and the maintenance of discipline; (f) the suspension or dismissal of members of the Constabulary from membership of that Constabulary and from the office of constable; (g) the maintenance of personal records of members of the Constabulary; (h) the duties which are or are not to be performed by members of the Constabulary; (i) the treatment as occasions of police duty of attendance at meetings of the Police Association and of any body recognised by the Secretary of State for the purposes of section 35; (j) the hours of duty, leave, pay and allowances of members of the Constabulary; (k) the pensions and gratuities in respect of service as a member of the Constabulary (including provision for the recognition for the purposes of such pensions and gratuities of service otherwise than as a member of the police force and for the payment and receipt of transfer values or of other lump sums made for the purpose of creating or restoring rights to such pensions and gratuities); and (l) the issue, use and return of equipment. (3) Without prejudice to the powers conferred by this section, regulations under this section shall— (a) establish, or make provision for the establishment of, procedures for cases in which a member of the Royal Ulster Constabulary may be dealt with by dismissal, requirement to resign, reduction in rank, reduction in rate of pay, fine, reprimand or caution; and (b) make provision for securing that any case in which a senior officer may be dismissed or dealt with in any of the other ways mentioned in paragraph (a) is decided by the Police Authority. (4) Without prejudice to the powers conferred by this section, regulations under this section shall provide for appeals to an appeals tribunal by members of the Royal Ulster Constabulary who are dismissed, required to resign or reduced in rank— (a) in a case where there is no right of appeal to any other person, by a decision taken in proceedings under regulations made in accordance with subsection (3); and (b) in a case where there is a right of appeal to another person, by a decision of that person. (5) In relation to any matter as to which provision may be made by regulations under this section, the regulations may, subject to subsection (3)(b)— (a) authorise or require provision to be made by, or confer discretionary powers on, the Secretary of State, the Police Authority, the Chief Constable or other persons; or (b) authorise or require the delegation by any person of functions conferred on him by or under the regulations. (6) Regulations under this section as to conditions of service shall secure that appointments for fixed terms are not made except where the person appointed holds the rank of superintendent or a higher rank. (7) Where regulations made in accordance with subsection (2)(a) vary the ranks held by members of the Royal Ulster Constabulary, the regulations may make such amendments as appear to the Secretary of State to be necessary or expedient to any statutory provision (including this Act) containing a reference to any rank held by a member of that Constabulary.

(l) "

Section 36 provided:

"The Secretary of State shall exercise his powers under this Act in such manner and to such extent as appears to him to be best calculated to promote the efficiency and effectiveness of the Northern Ireland Police Service."

Section 37 provided:

"(1) For the purpose of providing a common set of aims, values and aspirations in connection with the exercise of their respective functions under this Act by— (a) the Secretary of State; (b) the Police Authority; (c) the Chief Constable, 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:

"(1) Save for the provisions of paragraph (2), a constable to be qualified for promotion to the rank of sergeant shall have— (a) obtained a pass in the qualifying examination for promotion to the rank of sergeant; (b) completed not less than two years' service; (c) completed his probationary service; and (d) attained the age of 20 years and 6 months." (Paragraph (2) related to service in the fingerprint branch.) "(3) Save for the provisions of paragraph (4), a sergeant to be qualified for promotion to the rank of inspector shall have— (a) obtained a pass in the qualifying examination for promotion to the rank of inspector; and (b) completed two years' service in the rank of sergeant." (Paragraph (4) related to the fingerprint branch.) Regulation 6 provided: "

Subject to regulations 9(2) and (4), promotion from one rank to another rank shall be by selection." 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

[1968] 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.

[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.