A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998

Whether a person is deprived of liberty under article 5 requires a fact-sensitive, multifactorial assessment of the person’s concrete situation. The court must consider the type, duration, effects and manner of implementation of the restrictions, together with their cumulative effect and closeness to ordinary detention. Valid consent is an autonomous Convention concept. Lack of domestic legal capacity does not automatically prevent consent where the person understands their circumstances and expresses acceptance. Wishes, objections, normality, purpose and coercion may all be relevant, especially in marginal cases. The Supreme Court overruled the acid test in Cheshire West and held that the proposed Northern Ireland guidance would be compatible with article 5 and within ministerial competence.

The Attorney General for Northern Ireland referred a question under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998. The proposed Revised Code, issued under section 288(4) of the Mental Capacity Act (Northern Ireland) 2016, would allow some adults lacking domestic mental capacity to consent to their care arrangements through positive expressions of wishes and feelings.

The issue was whether issuing the Revised Code would be incompatible with article 5 of the Convention and therefore outside the Minister’s competence under section 24 of the Northern Ireland Act 1998. The court also considered whether the reference required examination of all three elements of deprivation of liberty and whether the approach in Cheshire West remained correct.

Lord Sales and Lady Simler delivered the judgment of the court, with which Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lord Stephens and Lady Rose agreed.

1. Prospective review. The Revised Code was guidance to which decision-makers had to have regard, but which did not displace the general law. The appropriate test was whether it authorised or approved unlawful conduct in a significant number of cases, applying the approach in R (A) v Secretary of State for the Home Department [2021] UKSC 37. The more deferential all-or-almost-all-cases test for devolved legislation did not apply to ministerial guidance.
2. Article 5 test. The assessment of deprivation of liberty is multifactorial. It begins with the individual’s concrete situation and considers the type, duration, effects and manner of implementation of the measure. The factors must be assessed cumulatively and in combination. No single factor is determinative.
3. Consent and capacity. The objective element of confinement, the subjective element of absence of valid consent, and attribution to the state must be considered together. Valid consent is an autonomous Convention concept. It is distinct from consent amounting to a waiver of Convention rights and from domestic legal capacity. A person lacking domestic legal capacity may nevertheless understand their circumstances sufficiently to express acceptance or objection. Such views must be respected.
4. Relevant circumstances. Objections, compliance, coercion, medication, normality of the placement, its purpose, the individual’s choices, available social contacts and the actual degree of restriction may be relevant. Mere acquiescence is insufficient where there is serious doubt. In marginal cases the approach must be practical and realistic, and no inference of consent should be drawn where serious doubt remains.
5. Cheshire West. The acid test of continuous supervision and control combined with not being free to leave departed from the Strasbourg multifactorial approach. The majority’s treatment of lack of objection, normality and purpose as legally irrelevant was also wrong. The court applied the 1966 Practice Statement and overruled Cheshire West and Chester Council v P [2014] UKSC 19.
6. Outcome. The Minister would not, by issuing the Revised Code, authorise or approve unlawful conduct in a significant number of cases. The Revised Code was compatible with article 5 and the Minister would act within competence. The draft would require revision in light of the judgment.

This was a devolution reference to the Supreme Court under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998, rather than an appeal from a lower court. The Supreme Court answered the referred question by holding that the Minister could lawfully issue the proposed Revised Code.