In re Shields (Respondent) (Northern Ireland)

The House of Lords held that the Chief Constable had power under sections 19 and 22 of the Police (Northern Ireland) Act 1998 to issue Force Orders supplementing limited regulations made by the Secretary of State, provided those orders do not conflict with regulations made under section 25. The court treated section 25 as permissive in many respects: where the Secretary of State has not prescribed detailed rules for promotion, the Chief Constable may fill the gaps by directions on eligibility and selection criteria. The court therefore upheld Force Order No 10/2001 paragraphs 9(2)–(5), which limited promotion eligibility by reference to sickness absence, as not being ultra vires the Chief Constable's powers.

The respondent, an inspector, applied for promotion and was declared ineligible under paragraphs 9(2)–(5) of Force Order No 10/2001 ("Managing Attendance Policy"). She sought judicial review and a declaration that those subparagraphs were unlawful and ultra vires. At first instance Kerr J dismissed the application. The Court of Appeal allowed a new point that the Chief Constable had no power to make provisions as to eligibility for promotion and declared the challenged subparagraphs void ([2002] NICA 21). The Chief Constable appealed to the House of Lords.

The issues before the House were whether the Secretary of State's power under section 25 of the Police (Northern Ireland) Act 1998 precluded the Chief Constable from issuing Force Orders on promotion eligibility and whether paragraphs 9(2)–(5) of the Force Order conflicted with the Promotion Regulations 1995 (made under the 1970 Act and continued in force).

The House analysed the statutory scheme: section 19 entrusts direction and control to the Chief Constable, section 22 requires appointments and promotions to be made by the Chief Constable "in accordance with" regulations under section 25, and section 25 gives the Secretary of State a wide but permissive power to make regulations about conditions of service, including promotion. The Promotion Regulations in force were brief and did not prescribe detailed criteria for choice between qualified candidates. The Lords concluded that "in accordance with" requires compliance with regulations to the extent they exist, but does not prevent the Chief Constable from filling regulatory gaps by directions that supplement rather than contradict regulations. The House therefore allowed the appeal and held the challenged Force Order provisions lawful. The Lords noted administrative advantages of permitting Force Orders to address detailed management issues such as attendance and promotion eligibility.

Appeal allowed. The House held that the Chief Constable, under sections 19 and 22 of the Police (Northern Ireland) Act 1998, may issue Force Orders supplementing but not conflicting with regulations made by the Secretary of State under section 25; because the Promotion Regulations were limited and the Force Order provisions did not conflict with those regulations, paragraphs 9(2)–(5) were not ultra vires.

High Court (Kerr J): application for judicial review dismissed. Court of Appeal (Carswell LCJ, Campbell LJ, Sir John MacDermott): allowed appeal on a new point and declared Force Order paragraphs 9(2)–(5) ultra vires; reported [2002] NICA 21. House of Lords: appeal allowed [2003] UKHL 3.