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You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Northern Ireland Human Rights Commission, Re an Application for Judicial Review [2001] NICA 17 (06 April 2001)
URL: http://www.bailii.org/nie/cases/NICA/2001/17.html
Cite as: [2001] NICA 17
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- The public perception of independence of the judiciary may be compromised if it appears that the court's decision is influenced by a Government agency that is not a party to the proceedings.
- Intervention by the Commission may lead to an increase in the costs of the hearing and questions would arise as to who is to bear the additional costs and what principle should govern the determination of that issue.
- The principle of equality of arms would be threatened if the Commission's intervention appeared to favour one litigant's case as against the other as it would if a human right conflicted with a purely legal right. A party would be entitled to feel aggrieved if a publicly financed and prestigious body was permitted to intervene by the court in opposition to his interests.
McCOLLUM LJ
This is an appeal from a judgment given by the Lord Chief Justice on 8 December 2000 in which he held that the Northern Ireland Human Rights Commission ("the Commission") had not been invested with a statutory power to intervene or act as amicus curiae in legal proceedings.
At the commencement of the hearing Mr MacDonald QC, who appeared for the Commission, raised an objection to the composition of the court. He based his objection on two matters, the first based on the proposition that the Lord Chief Justice as President of the court has responsibility for the composition of the court. He submitted that since the Lord Chief Justice had heard the case at first instance he should not be involved in choosing the composition of the Court of Appeal.
His second proposition was based on the fact that I sat as a member of the court in the David Adams appeal when the court ruled that the decision of the Lord Chief Justice in the present case stood as authority until this appeal is disposed of. In that case the court declined to permit intervention by the Commission and it was Mr MacDonald's submission that it could be considered that I have made a pre-judgment in the matter by concurring in that decision.
He conceded that he was not in a position to make an application to the court to recuse itself on the grounds of bias, but stated that he wished to register his objection to the constitution of the court as an infringement of the principle enshrined in Article 6 of the Human Rights Convention that cases should be heard by an independent and impartial tribunal.
The court noted the objection but decided to proceed with the hearing.
I refute the suggestion that any member of this court is liable to be prejudiced in any way in his approach to the matter at issue either from any underlying attitude to the principle of human rights or in deference to the Lord Chief Justice's position.
I am not impressed by the suggestion that the Lord Chief Justice has been or could be thought to be influenced in any way by his perception of the likely attitude of any of the members of the court or that he would in any circumstances choose a court on the basis that it is one that would be likely to uphold his judgment irrespective of its assessment of the true merits of the case.
In the Adams case there was no consideration whatever of the merits of the point at issue in this case and the court's decision was based purely on the question of legal precedent. I am content, therefore, that the matters raised by Mr MacDonald do not affect our status as an impartial and independent tribunal.
The substantive issue in the appeal arose during the course of an inquest being conducted by Mr John L Leckey into the deaths of a number of victims of a bomb explosion in Omagh on 15 August 1998.
On 16 August 2000 Mr Leckey wrote to the Commission enquiring whether it would wish to make a formal submission on the issue of pre-inquest disclosure of depositions, maps and photographs to the representatives of the families of two of the victims. The Commission was represented by Miss Quinlivan of counsel at a hearing on 6 September, but in the event the Coroner did not call upon her, as he decided, on the basis of the submissions of the parties, to allow disclosure.
During the conduct of the inquest an issue arose as to the effectiveness of the police response to the bomb warning and the extent to which this might be investigated and the Coroner decided to hear submissions on that issue.
On 12 September the Commission wrote to the Coroner stating that it had formed the view that "there may be human rights principles arising in respect of these matters on which it would be appropriate for the Commission to make submissions to the inquest".
On 27 September the Coroner heard detailed submissions from counsel instructed on behalf of the Commission and held that it did not have power under the provisions in the Northern Ireland Act 1998, by which it was established, to intervene in judicial proceedings.
The inquest proceeded to a conclusion while the judicial review proceedings, on which this appeal is based, were instituted and the Lord Chief Justice decided that while the relief sought could not be implemented in the inquest proceedings, it was proper to hear and determine the application on the basis that while no substantive relief could now be given the matter of general public importance justified a judicial ruling.
All parties concerned are agreed that this was an appropriate course and this court fully approves of it.
The question for the court to decide is essentially one of statutory construction although the argument has ranged widely over issues of policy and principle.
I gratefully acknowledge the arguments of counsel and the broad survey of the principles, but primarily I feel that the court is bound to apply the law as laid down in Attorney General v Great Eastern Railway Company (1885) Appeal Cases 473 at 478 per Lord Selborne LC and Baroness Wenlock v River Dee Company (1885) 10 Appeal Cases 354 at 362/3 per Lord Watson which held that a statutory body has only the powers conferred by statute upon it together with such incidental powers as may be derived by reasonable implication from the provisions of the legislation. A statutory body may therefore lack the power to carry out functions which may be carried out by a private citizen or by a body which does not owe its existence to statute.
Mr MacDonald invited us to consider the history of the legislation as well as the detail of the enactment.
The setting up of the Commission was foreshadowed in paragraph 5 of the section of the Belfast Agreement headed "Rights, Safeguards and Equality of Opportunity":
"5.A new Northern Ireland Human Rights Commission with membership from Northern Ireland reflecting the community balance will be established by Westminster legislation independent of Government with an extended and enhanced role beyond that currently exercised by the Standing Advisory Commission on Human Rights to include keeping under review the adequacy and effectiveness of laws and practices making recommendations to Government as necessary providing information and promoting awareness of human rights, considering draft legislation referred to them by the new Assembly and in appropriate cases bringing court proceedings or providing assistance to individuals doing so."
It can be seen that while most aspects of the role of the Commission are described without any qualification there was a limitation proposed to the power of bringing court proceedings or providing assistance to individuals, declared to be exercised "in appropriate cases".
Mr MacDonald pointed out that Sections 68-72 of the Northern Ireland Act 1998 were introduced to give effect to the aspects of the agreement concerning human rights and that the court ought to look at these provisions as a whole and in the context of their purpose of implementing the agreement. I set out the latter three sections in detail hereunder:
" 69.-(1) The Commission shall keep under review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights.
(2)The Commission shall, before the end of the period of two years beginning with the commencement of this section, make to the Secretary of State such recommendations as it thinks fit for improving
(a)its effectiveness;
(b)the adequacy and effectiveness of the functions conferred on it by this Part; and
(c)the adequacy and effectiveness of the provisions of this Part relating to it.
(3)The Commission shall advise the Secretary of State and the Executive Committee of the Assembly of legislative and other measures which ought to be taken to protect human rights
(a)as soon as reasonably practicable after receipt of a general or specific request for advice; and
(b)on such other occasions as the Commission thinks appropriate.
(4)The Commission shall advise the Assembly whether a Bill is compatible with human rights
(a)as soon as reasonably practicable after receipt of a request for advice; and
(b)on such other occasions as the Commission thinks appropriate.
(5)The Commission may
(a)give assistance to individuals in accordance with section 70; and
(b)bring proceedings involving law or practice relating to the protection of human rights.
(6)The Commission shall promote understanding and awareness of the importance of human rights in Northern Ireland; and for this purpose it may undertake, commission or provide financial or other assistance for -
(a)research; and
(b)educational activities.
(7)The Secretary of State shall request the Commission to provide advice of the kind referred to in paragraph 4 of the Human Rights section of the Belfast Agreement.
(8)For the purpose of exercising its functions under this section the Commission may conduct such investigations as it considers necessary or expedient.
(9)The Commission may decide to publish its advice and the outcome of its research and investigations.
(10)The Commission shall do all that it can to ensure the establishment of the committee referred to in paragraph 10 of that section of that Agreement.
(11)In this section
(a)a reference to the Assembly includes a reference to a committee of the Assembly;
(b)'human rights' includes the Convention rights.
70.-(1) This section applies to
(a)proceedings involving law or practice relating to the protection of human rights which a person in Northern Ireland has commenced, or wishes to commence; or
(b)proceedings in the course of which such person relies, or wishes to rely, on such law or practice.
(2)Where the person applies to the Northern Ireland Human Rights Commission for assistance in relation to proceedings to which this section applies, the Commission may grant the application on any of the following grounds
(a)that the case raises a question of principle;
(b)that it would be unreasonable to expect the person to deal with the case without assistance because of its complexity, or because of the person's position in relation to another person involved, or for some other reason;
(c)that there are other special circumstances which make it appropriate for the Commission to provide assistance.
(3)Where the Commission grants an application under subsection (2) it may
(a)provide, or arrange for the provision of, legal advice;
(b)arrange for the provision of legal representation;
(c)provide any other assistance which it thinks appropriate.
(4)Arrangements made by the Commission for the provision of assistance to a person may include provision for recovery of expenses from the person in certain circumstances.
71.-(1) Nothing in section 6(2)(c), 24(1)(a) or 69(5)(b) shall enable a person
(a)to bring any proceedings in a court or tribunal on the ground that any legislation or act is incompatible with the Convention rights; or
(b)to rely on any of the Convention rights in any such proceedings,
unless he would be a victim for the purposes of article 34 of the Convention if proceedings in respect of the legislation or act were brought in the European Court of Human Rights.
(2)Subsection (1) does not apply to the Attorney General, the Attorney General for Northern Ireland, the advocate General for Scotland or the Lord Advocate.
(3)Section 6(2)(c)
(a)does not apply to a provision of an Act of the Assembly if the passing of the Act is, by virtue of subsection (2) of section 6 of the Human Rights Act 1998, not unlawful under subsection (1) of that section; and
(b)does not enable a court or tribunal to award in respect of the passing of an Act of the Assembly any damages which it could not award on finding the passing of the Act unlawful under that subsection.
(4)Section 24(1)(a)
(a)does not apply to a act which, by virtue of subsection (2) of section 6 of the Human Rights Act 1998, is not unlawful under subsection (1) of that section; and
(b)does not enable a court or tribunal to award in respect of an act any damages which it could not award on finding the act unlawful under that subsection.
(5)In this section 'the Convention' has the same meaning as in the Human Rights Act 1998."
I shall deal later in more detail with Section 69. It is quite clear that Section 70 is directed towards defining the functions of the Commission in giving assistance to individuals in relation to proceedings and to that extent it limits any general right to give assistance.
The function of Section 71 is described in a side note as "restrictions on application of rights" and it provides that nothing in Section 6(2)(c), 24(1)(a) or 69(5)(b) shall enable a person at (1)(a) to bring proceedings on the ground that any legislation or act is incompatible with the Convention rights and secondly at (1)(b) to rely on any of the Convention rights in any such proceedings, in either case unless he would be a victim for the purposes of Section 34, an exception being proceedings brought by a law officer of the Crown.
Mr MacDonald submitted that initially there are two broad issues in the appeal; the first being whether the Coroner was correct in subjecting the powers of the Commission to an examination and the second whether the Commission's powers included the right to intervene. He made it clear that primarily the Commission was concerned to establish its right as an intervener, and in this case it was concerned that an issue might not have been properly addressed by the parties represented at the inquest and that a particular family was unaware of the extent of the human rights issue and did not realise how to present it and the Commission wished to assist.
He submitted that the Coroner should have treated the Commission as he would any other party and simply concerned himself with the question of whether the Commission was a properly interested person and whether it could make a useful contribution to the proceedings.
These were matters which the Coroner had already acknowledged in earlier correspondence with the Commission.
Mr MacDonald said that it was no part of the Coroner's duties to decide whether the Commission was acting ultra vires.
Unincorporated bodies could apply in the High Court for judicial review and it was inappropriate for any inquiry to be made as to the legal status of a body wishing to appear or be represented at an inquest.
I do not see any merit in this point. The status of the Commission to appear is purely a question of law and it is incumbent on any tribunal to ensure that its proceedings are conducted in accordance with law. Moreover a Coroner has discretion to determine which parties within the permitted categories he allows to appear or be represented and is entitled to enquire as to the status as well as to the interest of any person wishing to take part in inquest proceedings.
Mr MacDonald suggested that courts as a matter of course do not enquire into the status of parties appearing before them. In the vast majority of cases the status and interest of the parties is quite clear but in the rare minority of cases in which such an issue may arise all courts are entitled to examine the status of those proposing to appear or be represented.
Mr MacDonald expressed his second point broadly and submitted that the Commission does have power to make submissions on human rights matters, which involve any issue relating to the observation of human rights and human rights law. He said that the human rights issue at the inquest was as to the scope and remit of the inquest and whether the Coroner should confine himself to the traditional parameters of an inquest or whether he should examine the issues more broadly. The Commission wished to make submissions to the Coroner on the scope of the inquiry to be made by him.
It appears to me that such a course would involve reliance on Convention rights by a person who was not a victim and therefore in breach of Section 71(1)(b).
Our attention has been drawn to the "notes on clauses", provided to the House of Lords, which referred to Clause 55 which became Section 69 of the Act and in particular to the paragraph under the heading "General":
"This clause sets out those functions of the Commission which in the Government's view need to be provided for specifically in statute. It is designed to reflect as far as possible the list of functions in paragraph 5 of the agreement and to provide some of the details of how the proposed functions will operate."
We were referred to an extract from Hansard on 27 July 1998 when Mr McNamara moved the following amendment:
"5.The Commission may with the permission of the court submit its opinion as amicus curiae on the substance of the proceedings before the court irrespective of whether the Commission is either a party to the proceedings or has granted assistance in relation to proceedings under subsection 2."
However, this amendment was rejected by the Government and at a later stage in proceedings before the House on 18 November 1998 Mr Murphy said:
"We have been asked about the role of the Commission as amicus curiae. Courts will be free to ask the Commission to provide assistance as amicus under the normal rules that apply however that is not a matter for the Bill but for the court in individual cases."
Mr MacDonald submitted that this indicated that it was the view of the Government that the Commission as constituted did have the capacity to appear as amicus curiae. This is undoubtedly so but it is equally clear that the Government did not intend in the Act to create any right to do so that did not exist at common law and we can only recognise the powers conferred by statute.
It is also of interest and may be instructive that when the Lord Chancellor referred to intervention by interested bodies in the course of litigation in his remarks in the House of Lords he specifically mentioned non-Governmental organisations.
To me it would seem strange, if there was any intention that the Commission should be an intervener, that he should refer to the possibility of intervention solely by non-Governmental organisations.
It was further submitted by Mr MacDonald that the Northern Ireland Act 1998 has the status of a constitutional enactment and should be interpreted accordingly.
I willingly embrace the proposition that interpretation of the 1998 Act should not be narrow or restricted. I have also considered the terms of the long title to the Act and referred back to paragraph 5 of the Belfast Agreement as an aid to interpretation.
Mr MacDonald suggested that by looking at each subsection individually the Lord Chief Justice was in error and that he should simply have taken the functions set out in Section 69 as typical of those to be exercised by the Commission and made the finding that any broadly similar powers would also be exercisable by the Commission.
I cannot agree with this approach. The provisions of the Act investing powers in the Commission must be looked at in the light of the stated objectives of the Act and in sympathy with its general import, but that does not enable a court to read something into the provisions which has not been enacted or to add to them at will.
The thrust of a good deal of Mr MacDonald's argument was that it is so self-evident that the Commission should be entitled to intervene in proceedings brought by other parties or in an inquest that it was absurd, anomalous and illogical to hold, as the Lord Chief Justice did, that no such power existed.
Mr Hanna QC for the respondent reminds us that the desirability or otherwise of the result is not really an issue for this court, the task of which does not go beyond interpretation of the words of the statute. However, I do think it appropriate to comment that it does not appear to me as axiomatic that it is desirable that the Commission should have the powers which it seeks in this case.
Intervention in any role by the Commission in proceedings in which it has no direct interest as a party can have one of two objectives in relation to the outcome of the proceedings. Either it is not calculated to affect the outcome, in which case it is irrelevant, or it is calculated to affect the outcome, in which case a number of potentially undesirable results may ensue.
The complexities which may result from intervention by a non-party were illustrated by the case of Van Orshoven v Belgium [1998] 26 EHRR 55. In that case at paragraph 39 the court considered "however, that great importance must be attached to the part actually played in the proceedings by the member of the Procureur G้n้ral's Department and more particularly to the content and effects of his submissions. These contain an opinion which derives its authority from that of the Procureur G้n้ral's Department itself. Although it is objective and reasoned in law the opinion is nevertheless intended to advise and accordingly influence the Court of Cassation".
The effect of the decision in that case is that all parties would have to be given the right to reply to and dispute the submissions of the Commission. It does not appear to me to be desirable that the Commission should be involved in possible controversy in a case to which it is not a substantive party.
It is initially an attractive proposition that the Commission as guardian of human rights generally should be able to assist a court faced with balancing human rights conflicting with each other or with substantive domestic law.
However while it may be difficult in a particular case to apply the principles of human rights, the exercise of applying the law has since time immemorial been a function of the courts and the concept of human rights itself and the interpretation of the Human Rights Convention or the Human Rights Act 1998 are not matters which should give a great deal of difficulty to a court. There is no indication anywhere in the Act that the judiciary's role in interpreting the law and applying it with due regard to the legal and human rights of those affected by legal proceedings is to be diminished or affected in any way.
If a judge were reluctant to respond to submissions about human rights from a party entitled to make them within the terms of Section 71(1) of the Act he would be unlikely to be more responsive to intervention by the Commission.
In the course of his argument Mr MacDonald acknowledged that it is the courts and tribunals that are entrusted with the task of implementing the law concerning human rights.
For his part Mr Hanna QC submitted that courts are accustomed to dealing with even the most radical changes in the law and that legal practitioners are practised at learning the law and presenting appropriate submissions to the court.
It would be unique in our law if a body were to be created with the object of appearing in court for the purpose of instructing or advising the court on how to interpret a particular piece of legislation.
I affirm the court's respect for the constitution and role of the Human Rights Commission and we will pay due regard to the jurisprudence which it advocates through the means provided by Parliament, but I question whether there is in fact a useful role for the Commission in assisting the court to apply human rights considerations in individual cases.
I cannot therefore accept the argument that it is inconceivable that Parliament did not intend the Commission to have a statutory function to intervene in court proceedings either as a party or an amicus curiae.
In my view the Lord Chief Justice adopted the appropriate course by looking closely at the provisions of Section 69 of the Act to see whether any statutory function to appear as an intervener in proceedings or to be consulted as an amicus curiae can be found either expressly or by reasonable implication.
The expression amicus curiae is well recognised but is elusive when one seeks judicial comment on the role. In the Canadian case of Grice v R [1957] 11 DLR 699 Canada, Ferguson J said at page 702:
"Amicus curiae is one who is a bystander where a judge is doubtful or mistaken in a matter of law may inform the court in its ordinary use the term implies the friendly intervention of counsel to remind the court of some matter of law which has escaped its notice and in regard of which it is in danger of going wrong."
Mr Hanna reminded us of the remarks of Salmon LJ in Allen v Sir Albert McAlpine & Sons Limited [1968] 1 AER 543 at page 560:
"I had always understood that the role of the amicus curiae was to help the court by expounding the law impartially or if one of the parties were unrepresented, by advancing the legal arguments on his behalf. As I listened to the cogent and forceful arguments of counsel who appeared as amicus curiae, I gained the impression although no doubt it was an illusion that in reality held a watching or indeed a speaking brief on behalf of hardly impartial third parties who feared that their interests, or rather those of their members, might be prejudiced should these appeals be dismissed."
It does not appear to us that in any matter relating to human rights arising in the course of legal proceedings in which adversarial interests are engaged the Commission would be likely to have the necessary disinterested quality that one seeks in an amicus curiae. The Commission will always be seen as a champion and upholder of human rights and, therefore, presumably will favour the party whose human rights are strongest. There may, moreover, be competing rights not protected by the Convention and the person relying on them would certainly not regard the Commission as disinterested.
I do not accept Mr MacDonald's submission that we should look through the functions provided by Section 69 of the Act, consider the general import of them and interpret the Act as granting such other powers as may be covered by that general import.
It is necessary to look at the words of the statute and determine whether a function of the nature claimed is created expressly or by implication or may be fairly regarded as incidental or consequential upon those things which the legislature has authorised.
Subsection 5 provides that the Commission may (a) give assistance to individuals in accordance with Section 70 and (b) bring proceedings involving law or practice relating to the protection of human rights. 5(a) is clearly circumscribed by the provisions of Section 70 and it has not been suggested either before the Lord Chief Justice or in this court that this case can be brought within the terms of Section 5(a).
It would have been simple for Parliament, had it wished to include a power to intervene in proceedings, to have included such words in subsection 5(b) but the words are limited to the expression "bring proceedings". Taking the broadest possible view of this provision does not extend its meaning beyond its plain words.
It does not appear to me that subsection 6 helps the appellant in any way whether it can be read as it appears or as meaning "understanding of human rights and awareness of the importance of human rights". I do not accept that a statutory body given such a mandate is thereby invested with a power to intervene in legal proceedings to which it is not a party with the effect of promoting the interest of a party to those proceedings.
If Parliament had intended the Commission to be a participant in legal proceedings in pursuance of the functions set out in subsection 6 such a power would have required to be expressly provided.
I do not regard the provisions of the Act to contain any ambiguity which would require recourse to the principle in Pepper v Hart [1993] AC 593.
If recourse were to be had to the Parliamentary debate I would not find the result to be helpful to the appellant, since it is clear that it was not intended by the Act to provide a role as amicus curiae. The fact that the Minister believed that the Commission could so act without authorisation from the legislature simply confirms the preliminary attitude that a number of distinguished legal persons have also adopted, but cannot of itself amount to binding legal authority for the proposition.
Mr MacDonald relied on the case of Equal Opportunities Commission v Secretary of State for Employment [1994] 1 AER 910. However, the EOC had been granted a statutory duty "to work towards the elimination of discrimination". This was clearly a very broad mandate and the House of Lords held that it included the right to bring proceedings directed towards the elimination of discrimination.
No such broad mandate has been given to the Commission, but instead it has been given the express power to bring proceedings in appropriate cases.
Mr MacDonald expressed the apprehension that the consequence of the Lord Chief Justice's decision would be to debar the Commission from applying for judicial review. However the fact that the court has decided that the Commission does not have a function to intervene which was not expressly or impliedly created by Parliament does not rob it of the function to bring proceedings expressly granted by Parliament. The present application in itself illustrates the capacity of the Commission to apply for judicial review.
By analogy with the powers of the EOC, Mr MacDonald sought to argue that taken as a whole the Belfast Agreement intended to create a Human Rights Commission with the function of advancing the observance of human rights in Northern Ireland.
I have already commented that the creation of a number of particular functions which may be categorised as part of a wider general function does not entitle the court to come to the conclusion that it was that general function that was intended to be provided.
Draftsmen of agreements and treaties and parliamentary draftsmen can be expected to say what is meant and when specific functions are created there is no reason to suppose that it was intended to give general functions which would encompass other functions along with those actually granted. On the other hand when general functions are provided it is reasonable to conclude that particular functions falling within their general scope are meant to be included.
Having accepted Mr MacDonald's invitation to read not only the Act itself but also the materials provided by the Belfast Agreement and the published commentary thereon and details of the Parliamentary debate, I am firmly in agreement with the view expressed by the Lord Chief Justice that Parliament did not intend to and did not invest powers in the Commission either to intervene as an interested party or to act as amicus curiae.
It appears to me that the powers granted by the Act either to bring proceedings in its own name or to give assistance to individuals engaged in proceedings are quite adequate to ensure that the Commission is able to make a substantial contribution to the observance of human rights in Northern Ireland and to the involvement of the courts in that process.
Since preparing the draft of this judgment the attention of the members of the court has been drawn to three further cases.
I have considered the cases and find that they do not affect the view already reached by me.
They do illustrate an interesting consideration. Each is concerned with a body or bodies which has the interest of a particular group or organisation to promote or protect.
Such a statutory body may be expected to adopt a predictable stance if that interest is threatened and its position in legal proceedings will be unequivocal.
Should the Commission intervene to uphold one litigant's human rights it might well find itself embarrassed by a conflict with those of another.
The first case to which we are referred is R v Director of Public Prosecutions ex parte Duckenfield and another [1999] 2 All England Reports 873. That case concerned interpretation of Section 6(1) of the Police Act 1996 and Section 111(1) of the Local Government Act 1972.
The side note to Section 6 of the 1996 reads "general functions of police authorities" and subsection (1) provides:
"Every police authority established under Section 3 shall secure the maintenance of an efficient and effective police force for its area."
Section 111(1) of the 1972 Local Government Act provides:
"Without prejudice to any powers exercisable apart from this Section but subject to the following provisions of this Act a local authority shall have power to do anything (whether or not involving expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of their functions."
The issue was the extent of the combined effect of the powers of the Chief Constable, the Police Authority and the Secretary of State. In my view the duty imposed by Section 6(1) requires a wide use of powers the generality of which contrasts strongly with the particular and restricted functions invested in the Commission.
Moreover in the case of the local authority Section 111(1) appears to be calculated to emphasise general powers rather than to define or limit the exercise by the local authority of its powers.
Two further cases are referred to us to be considered in tandem, F v West Berkshire Health Authority, Mental Health Act Commission intervening [1989] 2nd All England Reports 545 HL and R v Bornwood Community and Mental Health NHS Trust ex parte L (Secretary of State for Health and others intervening [1998] 3 All England Reports 289 HL). These are two cases of intervention by the Mental Health Act Commission which was permitted by the courts.
However, the Mental Health Act Commission is invested with very wide functions including those residing in the Secretary of State and that of "general protection of patients detained under the Act" under Section 120(1) and (4) of the Mental Health Act 1983. Those general powers include "keeping under review the exercise of the powers and the discharge of the duties relating to the detention of patients.
A general function of a very wide nature has been provided and it is clear that to provide general protection of patients it may be essential for the Mental Health Act Commission to intervene in court proceedings. In such proceedings its position would be quite unambiguous.
Clearly the administration of a police force and the supervision of the welfare of mental patients are activities which may give rise to serious and unforeseeable problems and therefore require that general powers should be vested in the appropriate authority.
It is interesting to note that the specific powers sought to be exercised in Duckenfield's case are specifically vested in the Commission by the statute under consideration. However the specific powers exercised by the Mental Health Act Commission in the other two cases referred to is not granted by the Northern Ireland Act and the review powers of the Commission can be contrasted with those vested in the Mental Health Act Commission.
Under Section 69(1) the Commission "shall keep under review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights".
The Mental Health Act Commission is to keep "under review the exercise of the powers and the discharge of the duties relating to the detention of patients."
I would therefore dismiss the appeal.