Northern Ireland Human Rights Commission, In Re

The House of Lords held that the Northern Ireland Human Rights Commission, created by section 68 of the Northern Ireland Act 1998 and given functions in section 69, has the capacity to make submissions on human rights law and practice in Northern Ireland if permitted or invited by a court or tribunal. The court construed section 69 (in particular subsections (1), (5), (6), (8) and (9)) as conferring a general, non‑exclusive role which reasonably and fairly includes the capacity to intervene as an intervener or to assist as an amicus curiae, subject to the court's procedural control. The decision rests on ordinary principles of statutory interpretation about incidental or consequential powers (Attorney‑General v Great Eastern Railway Co. and related authorities) applied purposively and liberally to the Commission's statutory functions. The House emphasised that the capacity is conditional on the court's permission and that the court retains discretion to refuse, limit or invite such intervention to avoid unfairness, delay or inappropriate advocacy in proceedings such as inquests.

The appeal concerned whether the Northern Ireland Human Rights Commission (the Commission), established under section 68 of the Northern Ireland Act 1998 with functions in section 69, had a statutory capacity to make submissions on human rights issues in proceedings such as coroners' inquests. The specific factual background was the Omagh inquest into the 15 August 1998 bombing where the Coroner queried pre-inquest disclosure and later whether the Commission could make submissions on the scope of the inquest. The Coroner ruled that the Commission had no statutory power to intervene. The Commission sought declarations by judicial review and lost in the High Court (Carswell LCJ) and by majority in the Court of Appeal ([2001] NI 271), Kerr J dissenting.

The Commission sought a declaration that it could apply to intervene and, if permitted by the relevant court or tribunal, make submissions on human rights law and practice. The House framed the issue as one of statutory capacity: whether, although no express power to intervene appears in the 1998 Act, such a power can reasonably be implied as incidental to the express functions conferred (notably sections 69(1), (5), (6), (8) and (9)).

The majority in the House applied the established test that a statutory corporation may exercise those powers which are incidental or consequential to the purposes for which it was created and adopted a reasonably liberal approach to implication. They considered the Commission's duties to keep under review the adequacy and effectiveness of law and practice, to give or commission research and educational assistance, to give assistance to individuals (section 70) and to conduct investigations and publish outcomes. Taken together these functions, properly viewed, support a capacity to make submissions to courts or tribunals where that will promote understanding of human rights law and practice and where the court permits it. The House emphasised that the capacity is not a licence to intervene in all cases: the court retains discretion and procedural control to protect fairness, avoid undue expense or prejudice and to ensure the Commission acts cautiously and only in matters of sufficient importance. Lord Hobhouse dissented, favouring a stricter construction and noting that Parliament could have expressly conferred intervention powers or allowed them to be recommended under the Act's review procedure.

Relief sought: a declaration that the Commission had capacity to intervene or appear as amicus curiae to make submissions on human rights law and practice, and, in particular, to appear with the court's permission at coroners' inquests. Issues decided: (i) whether section 69 of the Northern Ireland Act 1998 impliedly conferred the capacity to make such submissions; (ii) the appropriate approach to implying powers in a politically sensitive statute implementing the Belfast Agreement; (iii) the limits imposed by court control of procedure and by section 71 and related provisions. Reasoning: the majority found that the combination of subsections 69(1), (5), (6), (8) and (9) reasonably and fairly implies the capacity to make submissions when permitted by the court; the court's discretion protects against abuse. The dissent considered the wording specific and limited and preferred that any extension of powers be achieved by political/legislative amendment.

Appeal allowed. The House concluded that although the 1998 Act does not expressly confer a power to intervene or to appear as amicus curiae, the Commission has the capacity to make submissions on human rights law and practice in Northern Ireland when permitted or invited by courts or tribunals (including coroners' inquests). The capacity is incidental to the express functions in section 69 and is subject to the court's procedural control and discretion.

High Court (judicial review) — Lord Chief Justice Carswell refused the declarations (8 December 2000). Court of Appeal (Northern Ireland) — appeal dismissed by majority; Kerr J dissenting ([2001] NI 271). House of Lords — appeal allowed ([2002] UKHL 25).