1. In this application the applicant, who is now aged 16 years, seeks judicial review of a decision by the Secretary of State to place him in Lisnevin Juvenile Justice Centre, a secure centre located near Millisle, Co Down. He was in fact released from detention in that centre a fairly short time after the decision in question, but the parties nevertheless asked the court to consider the issues involved in the application and make any necessary declaration, on the ground that it would clarify the law and would be likely to settle the issue in respect of future cases. Acting upon the principles set out by Lord Slynn of Hadley in R v Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450 at 456-7, I agreed to take this course.

2. On 20 October 1999 the applicant appeared before Belfast Youth Court, charged with burglary, driving a motor vehicle while disqualified, using a motor vehicle without insurance and three counts of taking a motor vehicle without consent. He was legally represented and pleaded guilty to the charges. The court remanded him in custody for a week under the power contained in Article 13 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (the 1998 Order), being satisfied under Article 12 that it was necessary to do so to protect the public and that the requisite conditions were fulfilled. He was placed in Lisnevin, which is the only secure juvenile justice centre in Northern Ireland.

3. It then became the duty of the Secretary of State under paragraph 1(1) of Schedule 2 to the 1998 Order to determine in which centre the applicant was to be detained. The Secretary of State follows a policy whereby, as a general rule, male children remanded in custody by a court under Article 13 of the 1998 Order will be detained in Lisnevin. He has power, however, to have a child transferred from one juvenile justice centre to another, and accordingly he sought advice from the non-statutory group constituted by him to consider such matters in order to determine whether the applicant should be transferred from Lisnevin. This group is comprised of representatives from the Juvenile Justice Branch of the Northern Ireland Office, from each of the three juvenile justice centres in which male children may be accommodated, members of the Social Services Inspectorate and a psychologist employed by the Juvenile Justice Board who specialises in the treatment of children in custody. The function and method of operation of the group are set out in paragraphs 12 to 14 of the affidavit sworn by Mr John McCartney, head of the Juvenile Justice Branch in the Criminal Justice Services Division of the Northern Ireland Office:

4. The group considered the applicant’s case on 26 October 1999. The members had before them the warrant of commitment, which detailed his offences, and an initial assessment completed by the worker assigned to the applicant by Lisnevin management. The group recommended that he should continue to be accommodated in Lisnevin. The Secretary of State accepted this recommendation.

5. When the applicant appeared again before Belfast Youth Court on 27 October 1999, it remanded him in custody for a further period of 28 days. In accordance with the Secretary of State’s decision concerning his accommodation, he continued to be detained in Lisnevin. When he appeared on 24 November 1999 before Belfast Youth Court, the court on this occasion granted him bail and he was released.

6. The applicant’s solicitors wrote to the Juvenile Justice Branch on 1 November 1999 asking for information on a number of matters, including reasons why he had been remanded to Lisnevin instead of St Patrick’s or Rathgael. The Northern Ireland Office replied by letter dated 9 November 1999 as follows:

7. The grounds put forward by Mr Larkin on behalf of the applicant were the following:

8. In support of his major argument that the respondent was obliged to give an opportunity to make representations Mr Larkin relied upon the general duty of fairness imposed upon a person or body making an administrative decision. He did not attempt to argue that the applicant had a specific legitimate expectation of consultation. In this I think that he was correct, for there is nothing in the facts which might be regarded as a representation or conduct giving rise to any such expectation.

9. The principles to be applied in determining the content of fairness in the exercise of a statutory power were set out by Lord Mustill in R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 at 560, in a passage which has been cited and followed in many subsequent cases, but which still bears repetition:

10. It appears from a number of decisions in which these principles have been worked out in the field of prison administration that several factors have to be taken into consideration in determining whether a duty to consult will arise at any stage:

11. The first of these factors is founded upon the same principle as that expressed by Megaw LJ in R v Hull Prison Board of Visitors, ex parte St Germain [1979] QB 425 at 450-1, that the courts would interfere in the case of a breach of a procedural rule by a board of visitors only if –

12. The applicant’s solicitors did not advance in correspondence any ground on which the applicant suffered any disadvantage from being placed in Lisnevin rather than in St Patrick’s Juvenile Justice Centre, nor was any evidence put before the court which tended to establish that such disadvantage might exist. The applicant put in evidence an inspection report in which the Social Services Inspectorate made a number of criticisms of the physical facilities and the management of Lisnevin. I have considered the content of these criticisms, and no doubt improvements were required – Mr McCartney states in paragraph 18 that some physical improvements have been made since the Inspectorate produced their report. The faults which they found with Lisnevin, however, even if many are still uncorrected, are not in my judgment sufficient to found the argument that the applicant was substantially worse off by being placed there than if he were accommodated in St Patrick’s. In the course of argument Mr Larkin suggested that because of the greater distance of Lisnevin from his home as against St Patrick’s his family could not visit him so frequently. This was not established by means of any evidence, and I should be slow to accept that it was a factor of great consequence, bearing in mind the location of each institution.

13. In the circumstances of this case I consider that consultation was not required at all, because of the relatively slight impact that the decision regarding his placement had upon the applicant’s interests. If, contrary to my opinion, it was necessary to afford the opportunity to make representations in some fashion in order to comply with the requirements of fairness, I am satisfied that it was made sufficiently available to the applicant and his family and solicitors, as Mr McCartney sets out in his affidavit. There would have been considerable practical difficulties in consulting them before the initial consideration of the applicant’s placement by the non-statutory group and the Secretary of State. Representations could have been made at any stage, and the Secretary of State could have altered his decision on placement at any time and transferred the applicant to another centre.

14. The second limb of the applicant’s first argument seems to me more apposite than his second argument. Applying the principles laid down in Ex parte Doody and usefully discussed in de Smith, Woolf & Jowell, Principles of Judicial Review , paras 8-047 and 8-048, I should not regard it as necessary in the first instance for the Secretary of State to furnish reasons to the applicant for his decision regarding his placement. When his solicitors questioned the decision, however, I consider that some obligation arose to give an explanation for the decision, in order to allow them to put forward effective representations if they so wished: cf the discussion of the content of the common law obligation to furnish reasons for a decision contained in pages 8 to 9 of my judgment in Re Ferris’ Application (2000, unreported). That was done in the letter of 9 November 1999 from the Northern Ireland Office to the solicitors, in which reference was made to the applicant’s “previous behaviour while in the care of the social services and the serious charges he faces now”. These matters would have been within the knowledge of the applicant and his family, and I do not consider that it was required that they should be spelt out with any greater particularity at that stage, though such a requirement might have arisen if the correctness of the matters relied upon by the NIO had been challenged. I accordingly do not consider that the applicant can rely successfully on either of the first two grounds advanced on his behalf.

15. The applicant relied on Articles 3, 12 and 27 of the United Nations Convention on the Rights of the child, which provide as follows:

16. Mr Larkin argued that the decision of the Secretary of State relating to the placing of the applicant in Lisnevin was in breach of these provisions. He submitted that the Secretary of State was obliged to have regard to the provisions, and in the alternative, that the applicant had a legitimate expectation that he would observe them in reaching his decision.

17. In my judgment it cannot be said that the Secretary of State acted in breach of any of these provisions. The court took the view that it was necessary for the applicant’s well-being to prevent him from absconding and committing more offences, which would have further imperilled his future. In order to comply with its ruling, it was proper for the Secretary of State to direct that he be placed in Lisnevin. That decision could be contrary to his well-being only if the conditions at Lisnevin were such as to be positively detrimental to him. Criticism may have been directed at the conditions and regimen at Lisnevin, but even if these had been uncorrected they were far from being such as to constitute a breach of Article 3. Similarly, it cannot in my view be said that the applicant was deprived of a standard of living adequate for his physical, mental, spiritual, moral and social development to a degree which would constitute a breach of Article 27.

18. The argument for the applicant under the UN Convention was based mainly on Article 12, which assures to children the right to express their views freely in all matters affecting it and an opportunity to be heard in any judicial and administrative proceedings affecting them. The object of this provision appears to be to ensure that children do not have to remain unrepresented or without a voice when their interests are affected by judicial or administrative decisions being taken. It is clearly important that if their interests may diverge from those of their parents, family members or guardians the children themselves must be given the chance to express a separate view. Even if there is not a material divergence of interests, the provisions of Article 12 appear to require that children be given an opportunity to express their own views and parents or family members cannot have the exclusive right to speak on their behalf. The focus of Article 12 is accordingly on the right to separate representation and expression of views, and it does not confer any greater entitlement to be consulted or to make representations than exists under the general law. For the reasons which I have given I consider that sufficient opportunity was given under the general law to the applicant to make representations about the institution in which he was placed. The solicitors who communicated with the Northern Ireland Office were instructed on his behalf, and the present application has been brought in his name. I therefore consider that the provisions of the UN Convention have all been observed.

19. This conclusion is sufficient to dispose of the application, but since the issues of the extent to which the Secretary of State was bound to have regard to the UN Convention and of the applicant’s legitimate expectation were fully argued before me, I shall express my opinion upon them. Mr Larkin argued that the decision of the Secretary of State relating to the placing of the applicant in Lisnevin was in breach of the provisions of the UN Convention which I have quoted. He submitted that the Secretary of State was obliged to have regard to these provisions, and in the alternative, that the applicant had a legitimate expectation that he would observe them in reaching his decision.

20. The first of these arguments is not in my opinion sustainable. The juridical status of international conventions in domestic law was reaffirmed by the Privy Council in Thomas v Baptiste [2000] 2 AC 1, where Lord Millett said at page 23, in the course of giving the majority judgment:

21. The issue in that case was decided by the conclusion that by ratifying the American Convention on Human Rights and making provision for individual access to an international body the government of Trinidad and Tobago had made the process part of domestic law. The judgments did, however, contain some discussion of the topic of legitimate expectation, to which I shall return in a moment.

22. It follows from the basic proposition set out by Lord Millett that if the Secretary of State did not have regard to the UN Convention or take into account its provisions, that is not in itself a valid ground of attack on his decision. As Sir Thomas Bingham MR observed in R v Ministry of Defence ex parte Smith [1996] QB 517 at 558:

23. Were the law otherwise, the consequence would be, as Lord Ackner pointed out in R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696 at 761-2, that such conventions would be incorporated into domestic law by the back door. The European Convention on Human Rights may now have been admitted by the front door through the enactment of the Human Rights Act 1998, but the UN Convention with which we are concerned has not been incorporated into domestic law and cannot therefore be a source of rights and obligations.

24. Mr Larkin’s alternative argument was that since the government has adhered to the UN Convention, an international treaty, persons in the position of the applicant must have a legitimate expectation that the Secretary of State would observe its terms. It does not follow, if this argument is correct, that failure to do so ipso facto invalidates his decisions, for provision may be made for a procedure which does not comply with the terms of the convention, which will be valid so long as the decision maker acts fairly: see Thomas v Baptiste [2000] 2 AC 1 at 25, per Lord Millett and cf de Smith, Woolf & Jowell, Principles of Judicial Review , para 7-019. Mr Larkin did not spell out the nature and extent of the expectation to which the applicant was entitled, but his argument was directed mainly to the provisions of Article 12 of the UN Convention. The nature of these provisions is such that any expectation may properly be described as one of procedural rather than substantive benefit – ie a claim to be entitled to the benefit of a specified procedure rather than to have the decision maker reach a specified conclusion – but the arguments advanced by counsel were addressed to legitimate expectations of both kinds. For convenience and economy of language I shall refer to the latter kind as substantive legitimate expectations.

25. Three questions arise for consideration:

26. In reaching this conclusion Lord Woolf expressed agreement with the judgments of Mason CJ and Deane J in the Australian case of Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 291:

27. Debate has continued for some time on the question whether there can be a legitimate expectation, whose fulfilment will be enforced by judicial review, that a substantive right will be upheld. The scale has been tipped towards recognition of substantive legitimate expectation by the decision of the Court of Appeal in R v North and East Devon Health Authority, ex parte Coughlan [2000] 3 All ER 850, in which the court declared unlawful a decision to close a nursing home in which the applicant was a resident, contrary to a firm promise given to her that it would be her home for life. It held on the facts that Miss Coughlan had a legitimate expectation of continued residence there, frustration of which would be so unfair as to amount to an abuse of power. The authority’s decision to close the home and transfer the applicant could only be justified if there was an overriding public interest, which had not been established. In the course of his judgment Lord Woolf MR set out the limits of the application of the doctrine of substantive legitimate expectation at pages 871-2:

28. At page 878 Lord Woolf MR defined more closely the circumstances which will make it a proper case for the court to declare a decision unlawful on this ground. Referring to R v Secretary of State for the Home Department, ex parte Hargreaves [1997] 1 All ER 397, in which Hirst LJ had condemned the doctrine of substantive legitimate expectation as a heresy, he stated:

29. In other cases the act or omission complained of may take place on a much smaller stage, with far fewer players. Here, with respect, lies the importance of the fact in the Coughlan case [2000] 2 WLR 622 that few individuals were affected by the promise in question. The case’s facts may be discrete and limited, having no implications for an innominate class of persons. There may be no wide-ranging issues of general policy, or none with multi-layered effects, upon whose merits the court is asked to embark. The court may be able to envisage clearly and with sufficient certainty what the full consequences will be of any order it makes. In such a case the court’s condemnation of what is done as an abuse of power, justifiable (or rather, falling to be relieved of its character as abusive) only if an overriding public interest is shown of which the court is the judge, offers no offence to the claims of democratic power.

30. There will of course be a multitude of cases falling within these extremes, or sharing the characteristics of one or other. The more the decision challenged lies in what may inelegantly be called the macro-political field, the less intrusive will be the court’s supervision. More than this: in that field, true abuse of power is less likely to be found, since within it changes of policy, fuelled by broad conceptions of the public interest, may more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by an earlier policy.”

31. I would refer also to the useful discussion of the topic in Kerr J’s judgment in Re Treacy’s Application [2000] NI 330 at 360-4.

32. No doubt the debate will continue and the law will be further developed as cases come before the courts for decision, but for the moment at least it would seem that the doctrine of substantive legitimate expectation has been accepted in England as a ground for invalidating an administrative decision in circumstances where it amounts to an abuse of power for which there is no justification based on overriding public interest. There has been criticism of the decision in Ex parte Coughlan , notably in the March 2000 issue of JR, but it represents binding authority in England and was accepted as such in Ex parte Begbie . In these circumstances I would, if it fell to be decided in the present application, accept when sitting at first instance that that view of the law ought to be adopted, and regard the dispute to which I referred in Re Croft’s Application [1997] NI 1 at 18-19 as having been resolved in this manner. I would also hold, if this issue had not been determined by my conclusion that the actions of the Secretary of State were not in breach of the UN Convention, that in the circumstances of the present case there was no abuse of power on his part.

33. The applicant has accordingly failed to make out a case for a declaration on any of the grounds on which he relied, and the application must be dismissed.