In re Shields (Respondent) (Northern Ireland)

Where regulations prescribe only part of the rules governing police promotion, the Chief Constable may use the statutory power of direction and control to fill the gaps. Any direction must supplement, rather than contradict or undermine, the regulations.

A statutory requirement that promotions be made “in accordance with” regulations does not necessarily make those regulations an exhaustive code. Its effect depends on their scope and the wider statutory scheme. Accordingly, attendance standards may lawfully determine eligibility for promotion where the regulations prescribe minimum qualifications and selection but leave the detailed selection criteria open.

The Chief Constable issued a Force Order under which officers exceeding specified levels of sickness absence were generally ineligible to seek promotion, subject to mitigating circumstances and an appeal. An inspector was denied eligibility for promotion to Chief Inspector under that policy.

The High Court dismissed her application for judicial review. The Court of Appeal of Northern Ireland subsequently held in [2002] NICA 21 that the relevant provisions were beyond the Chief Constable’s powers. It declared them void and quashed the appeal panel’s decision.

The central issue was whether sections 19 and 22 of the Police (Northern Ireland) Act 1998 empowered the Chief Constable to supplement promotion regulations made by the Secretary of State under section 25.

1. The appeal was allowed unanimously. Lord Bingham and Lord Hutton delivered the substantive speeches. Lord Browne-Wilkinson, Lord Nicholls and Lord Hope agreed with both. The judgment of the Court of Appeal was set aside.

2. Per Lord Bingham and Lord Hutton, section 25 of the Police (Northern Ireland) Act 1998 conferred a permissive power on the Secretary of State to regulate the government, administration and conditions of service of the force. The contrast between “may” in subsections (1) and (2) and “shall” in subsections (3) and (4) showed that the Secretary of State was not required to regulate every listed subject. Section 36 did not convert that discretion into a duty to produce a comprehensive regulatory code.

3. Per Lord Bingham and Lord Hutton, the Chief Constable’s power of direction and control under section 19 operated alongside the Secretary of State’s regulatory power. A Force Order could not contradict or undermine an applicable regulation. It could, however, supplement regulations where the Secretary of State had left matters open. Otherwise the breadth of section 25 would substantially emasculate the Chief Constable’s statutory management responsibility.

4. Per Lord Hutton, the words “in accordance with regulations” in section 22 required compliance with such regulations as had been made. In the statutory context, they did not restrict the Chief Constable to acting only as expressly authorised by those regulations. Lord Bingham similarly held that the Chief Constable could fill regulatory gaps, provided the resulting directions were neither directly nor indirectly inconsistent with the Secretary of State’s prescriptions.

5. The Royal Ulster Constabulary (Promotion) Regulations 1995 prescribed limited minimum qualifications and required promotion by selection, but supplied virtually no criteria for choosing between qualified candidates. The challenged sickness-absence provisions therefore supplemented rather than conflicted with the Regulations. Sections 19 and 22 empowered the Chief Constable to prescribe attendance as a criterion of eligibility and selection. Paragraphs 9(2)–(5) of the Force Order were lawful.

1. House of Lords: Allowed the Chief Constable’s appeal unanimously and set aside the judgment of the Court of Appeal.
2. Court of Appeal in Northern Ireland: In [2002] NICA 21, held paragraphs 9(2)–(5) of the Force Order ultra vires and void. It quashed the appeal panel’s decision that the respondent was ineligible for promotion.
3. High Court: Kerr J rejected the respondent’s grounds of judicial review, including claims based on article 8 and legitimate expectation, and dismissed the application. The vires argument accepted by the Court of Appeal had not been advanced at this stage.