High Court of Justice in Northern Ireland Queen's Bench Division Decisions

The wider context of anti-social behaviour law

"The individual has a right to respect for his home, meaning not just the right to the actual physical area but also the quiet enjoyment of that area."

It held that breaches of the right to respect of the home are not confined to concrete and physical breaches such as unauthorised entry into a person's home but also include those that are not concrete or physical, such as noise, emissions, smells and all forms of interference. A serious breach may result in the breach of a person's right to respect for his home if it prevents him from enjoying the amenities of his home. The nuisance must attain the minimum level of severity required for it to constitute a violation of Article 8. On the facts of that case the court was satisfied that there was more than adequate evidence produced in the domestic proceedings to show that the minimum level of severity had been met. The Spanish state acting through the City Council had failed to discharge its positive obligations to take effective steps to address the third parties breaches. The court stated at paragraph 61:

"Although the Valencia City Council has used its powers in this sphere to adopt measures… which should in principle have been adequate to secure respect for the guaranteed rights, it tolerated, and has contributed to, the repeated flouting of the rules which it itself had established during the period concerned. Regulations to protect guaranteed rights serve little purpose if they are not duly enforced and the court must reiterate that the Convention is intended to protect effective rights, not illusory ones. The facts show that the applicant suffered a serious infringement of her right to respect for her home as a result of the authorities failure to take action to deal with the night time disturbances."

The factual background

The applicant's preliminary challenge to the legislation

The statutory context of the dispute

"75. - (1) A public authority shall in carrying out its functions relating to Northern Ireland have due regard to the need to promote equality of opportunity -

(a) between persons of different religious belief,

political opinion, racial group, age, marital status or sexual orientation;

(b) between men and women generally;

(c) between persons with a disability and persons without; and

(d) between persons with dependants and persons without.

(2) Without prejudice to its obligations under subsection (1), a public authority shall in carrying out its functions relating to Northern Ireland have regard to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group.

(3) In this section "public authority" means -

(a) any department, corporation or body listed in Schedule 2 to the Parliamentary Commissioner Act 1967 (departments, corporations and bodies subject to investigation) and designated for the purposes of this section by order made by the Secretary of State;

(b) any body (other than the Equality Commission) listed in Schedule 2 to the Commissioner for Complaints (Northern Ireland) Order 1996 (bodies subject to investigation);

(c) any department or other authority listed in Schedule 2 to the Ombudsman (Northern Ireland) Order 1996 (departments and other authorities subject to investigation);

(d) any other person designated for the purposes of this section by order made by the Secretary of State.

(4) Schedule 9 (which makes provision for the enforcement of the duties under this section) shall have effect.

(5) In this section -

"disability" has the same meaning as in the Disability Discrimination Act 1995; and

"racial group" has the same meaning as in the Race Relations (Northern Ireland) Order 1997."

"10. - (1) If the Commission receives a complaint made in accordance with this paragraph of failure by a public authority to comply with a scheme approved or made under paragraph 6 or 7, it shall -

(a) investigate the complaint; or

(b) give the complainant reasons for not investigating.

(2) A complaint must be made in writing by a person who claims to have been directly affected by the failure.
 
(3) A complaint must be sent to the Commission during the period of 12 months starting with the day on which the complainant first knew of the matters alleged.

(4) Before making a complaint the complainant must-

(a) bring the complaint to the notice of the public authority; and

(b) give the public authority a reasonable opportunity to respond.

Investigations

11. - (1) This paragraph applies to -

(a) investigations required by paragraph 10; and

(b) any other investigation carried out by the Commission where it believes that a public authority may have failed to comply with a scheme approved or made under paragraph 6 or 7.

(2) The Commission shall send a report of the investigation to -

(a) the public authority concerned;

(b) the Secretary of State; and

(c) the complainant (if any).

(3) If a report recommends action by the public authority concerned and the Commission considers that the action is not taken within a reasonable time -

(a) the Commission may refer the matter to the Secretary of State; and

(b) the Secretary of State may give directions to the public authority in respect of any matter referred to him.

(4) Where the Commission-

(a) sends a report to the Secretary of State under sub-paragraph (2)(b); or

(b) refers a matter to the Secretary of State under sub-paragraph (3)(a),

it shall notify the Assembly in writing that it has done so and, in a case falling within paragraph (a), send the Assembly a copy of the report.

(5) Where the Secretary of State gives directions to a public authority under sub-paragraph (3)(b), he shall notify the Assembly in writing that he has done so.

Government departments

12. - (1) Paragraphs 6, 7 and 11(2)(b) and (3) do not apply to a government department which is such a public authority as is mentioned in section 75(3)(a).

(2) On receipt of a scheme submitted by such a government department under paragraph 2 or 3 the Commission shall-

(3) A request under sub-paragraph (2)(b) shall be treated in the same way as a request under paragraph 3(1)(b).

(4) Where a request is made under sub-paragraph (2)(b), the government department shall, if it does not submit a revised scheme to the Commission before the end of the period of six months beginning with the date of the request, send to the Commission a written statement of the reasons for not doing so.

(5) The Commission may lay before Parliament and the Assembly a report of any investigation such as is mentioned in paragraph 11(1) relating to a government department such as is mentioned in sub-paragraph (1)."

The Guidelines

"For each policy, the following criteria must be considered -

Is there any evidence of higher or lower participation or uptake by different groups?

Is there any evidence that different groups have different needs, experiences, issues and priorities in relation to the particular policy?

Is there any opportunity to better promote equality of opportunity or better community relations by altering the policy or working with others in government or in the larger community?

Have consultations with relevant groups, organisations or individuals indicate that particular policies create problems which are specific to them?

If the answer to any of these is positive, consideration must be given to whether the subject the policy of the equality impact assessment procedure. This is described more fully in Annex 1, which is part of these guidelines. The equality scheme must include a commitment to conducting impact assessment in accordance with this procedure.

A view must then be reached on the priority issues for equality impact assessment. Priorities may be established based on factors such as;

Social need.

Effect on peoples' daily lives.

Effect on economic, social and human rights."

In relation to "proposed policies" the Guidelines went on to state:

"Likewise proposed policies must be subject to screening and those identified as having significant implications for equality of opportunity following such a review must be subject to full impact assessment. The same criteria and factors as those identified above must be applied, when considering which new policies should be subject to equality impact assessment.

In the case of proposals for legislation, an assessment of the implications for the Section 75 duties must be included in any proposal which seeks Executive Committee approval for the policy to which the proposed legislation is to give effect, and in the Memorandum accompanying a Bill which goes to any Committee of the Assembly considering legislative proposals".

In relation to existing policies the Guidelines included a provision that where the screening exercise has not been completed prior to the submission of the scheme to the Equality Commission the scheme must include a commitment to include a detailed report of the screening exercise in the annual report to the Commission. The report on the screening exercise should detail which policies will be subject to impact assessment and which policies proposed by those consulted as appropriate for impact assessment have not been so included and why.

The NIO Equality Scheme

"The Department will consider the impact of each current or new policy on equality of opportunity in terms of the nine categories listed at section 75 of the Act. For each policy the following criteria will be applied;

a. Is there any evidence of higher or lower participation or uptake by different groups?

b. Is there any evidence that different groups have different needs, experiences, issues and priorities in relation to the particular policy?

c. Is there any opportunity to promote equality of opportunity or good relations better by altering the policy or working with others in government or the community at large?

d. Have consultations with relevant groups, organisations or individuals indicated that particular policies, functions or duties create problems that are specific to them?

If the answer to any of these questions is positive or "Don't Know", consideration will be given as to whether to subject the policy to the equality impact assessment procedure. Equality impact assessments will be conducted in accordance with the procedure set out in Annex 1 to the Equality Commission's Guidelines on the form and content of Equality Schemes. The Department has recognised that in many policy areas there is a dearth of statistical data on which to base either its screening judgment or its impact assessments. A data availability audit for each policy area has been completed. Other means of forming objective judgments about equality impact will also be employed such as consultation with representative groups, surveys etc. In some cases at least in the interim these may be the only objective means of forming judgments."

The NIO screening of the policy

"Anti-Social Behaviour Orders and to a lesser extent acceptable behaviour contracts will constrain the freedom of certain individuals in order to allow an acceptable quality of life for other individuals."

Para. 4 of the questionnaire went on to pose the question "If an adverse impact has been identified how would you categorise it?" The answer was categorised as low impact not readily addressed.

"Individuals most likely to be constrained by anti-social behaviour orders and acceptable behaviour contracts will be those engaging in anti-social behaviour and criminality and are likely disproportionately to be young male. There is no evidence of higher or lower participation of those likely to benefit from the imposition of orders and contracts."

The form went on to conclude that there was no evidence that particular groups had a different needs, experience, issues or priorities in relation to the main policy area. Nor was there an opportunity to promote equality of opportunity or good relations by altering policy. It concluded further that consultation in the past with relevant representative organisations and individuals within the relevant groups, had not indicated that particular functions, policies or duties had not created problems that were specific to them. Para. 6 went on to state:

"If the answer to any of the questions in this section is YES or DON'T KNOW, proceed to consideration as to whether to submit the function, policy or duty to the full impact assessment. If the answer to all of the above questions is NO a full impact assessment is not required."

The document recorded that no impact assessment was required.

The thrust of the applicant's case

The Commission investigation and report

"(1) It is our view that given the available statistical data which indicates that anti-social behavioural orders have been predominantly used against young males under 21 and the assessment and the consultation document itself that acceptable behaviour contacts (sic) are most likely to be used in respect of young people a full impact assessment of the policies contained in 'Measures to Tackle Antisocial Behaviour' in accordance with the requirements to Section 75 and Schedule 9 of the Northern Ireland Act 1998, Annex 1 of the Equality Commission Guidance and the Northern Ireland Office Approved Equality Scheme should have been carried out.

(2) The Northern Ireland Scheme gives a commitment to communicating with children and young people at Paragraph 4.7. Children and young people should have been directly consulted about these proposals both as part of the consultation process and as part of the equality impact assessment.

(3) On 10 March 2004 in the House of Commons, the Minister of State, Mr John Spellar stated in response to a question from a Northern Ireland member regarding the consultation on the introduction of anti-social behaviour orders in Northern Ireland:

'The Hon gentleman knows that communities across Northern Ireland have resoundingly said yes and we have put detailed provisions out for consultation. Furthermore I have shortened the consultation period precisely so that we can implement the measures as soon as possible. There is a crying need for them and we know from our experience in England that they work. They want to introduce them as soon as possible.'

We are concerned that such a remark suggests that the outcome of consultation has been pre-judged in the absence of a full impact assessment procedure."

"However, as we have said before, we do wish to co-operate fully with the Equality Commission and given that the matter has been on the table for some time we are exceptionally leaving this aside in this instance. I must however record our view that this creates no precedent and is an indication of our willingness to be as helpful as possible."

The Commission Report

(a) Regard had to be had to paragraph 3.2 of the Scheme.

(b) By virtue of the penultimate sentence at paragraph 3.2, and having answered in the affirmative the question "is there evidence of higher or lower participation or uptake by different groups within any of the nine categories" the NIO was obliged to give consideration to whether an equality impact assessment was required.

(c) The original screening documentation simply records a decision that an EIA is not required. It gave no reasons why an assessment was not required.

(d) It is implicit that a public authority which decides that an equality impact assessment is not required should record its reasons for its decision. The decision in this instance was not a reasoned decision such as is to be expected of a public authority. Such a decision should have been explained and documented in the screening documentation. The absence of such an explanation rendered it impossible to understand how the NIO had reached its conclusion.

(e) The failure to record any such reasons indicated that it had not given "consideration" as required by paragraph 3.2.

(f) The Guidelines duties which are an essential aid to interpret the meaning and ambit of the Scheme commitments state that public authorities must subject to full impact assessment proposed policies which have been identified through screening as having significant implications for a quality of opportunity.

(g) The Commission did not accept the reasons subsequently given by the NIO for not carrying out an equality impact assessment (viz that the proposals were unlikely to have an adverse differential impact on any section 75 group; that they were directed or targeted towards the population as a whole and would be universally applied; and that those falling within the ambit of the legislation would be self-selecting by virtue of their behaviour). The focus should have been on the adverse impact.

(h) The NIO had failed to consider adequately an equality impact assessment in the context of the duty to have due regard to the need to promote equality of opportunity.

(i) A public authority cannot have an absolute discretion whether to conduct an assessment in the circumstances. There must be an evidential threshold beyond which an assessment is required unless the public authority has good reasons not to do so. The evidential threshold of the evidential threshold of significant implications for equality of opportunity was substantially exceeded in this case. In the absence of adequate reasons not to do so the Commission was satisfied that consideration of an equality impact assessment in the circumstances should have been to undertake the assessment.

(j) The Commission was satisfied that the failure to disclose that the application of the screening criteria had produced one positive response and the inadequacy of the response made by the NIO to the representations made to it indicated inadequate consultation on the screening of the proposed policy.

The recommendations of the Commission

The NIO criticism of the Commission Report

The NIO's contentions

"When the executive seeks to put before Parliament legislation in which there are human rights issues, the courts must be slow to intervene to stop such legislation being considered by Parliament itself bearing in mind the various checks and balances that exist under the legislation and bearing in mind the individual citizen's rights to be protected under the Human Rights Act after the legislation is enacted in the way fixed by that Act. In R v HM Treasury ex parte Smedley [1985] 1 All ER 590 the Court of Appeal held that where an administrative order or regulation is required by statute to be approved by resolution of both Houses of Parliament the court could in an appropriate case intervene by way of judicial review before the Houses had given their approval, even though in most cases the only appropriate form of relief, if any, would be by way of declaration. The court however, stressed that that jurisdiction was to be exercised with great circumspection and with close regard to the dangers of usurping or encroaching on any function which statute has specifically conferred on Parliament and on the functions of Parliament in general. It should be added that the jurisdiction would require even greater circumspection when it is a matter for political judgment by a Minister to decide whether or not to introduce legislation in Parliament. Although the legislation in the present case would be by way of Order in Council and thus technically subordinate, one must not lose sight of the fact that subordinate legislation in Northern Ireland replaces primary legislation and to that extent differs from the more ordinary understood concept of delegated legislation."

"In relation to the alleged breach of section 75 of the Northern Ireland Act 1998 that Act distinguishes between the promotion of equality of opportunity in section 75 and the outlawing of discrimination in section 76 on the part of public authorities. Discrimination outlawed is on the ground of religious belief or political opinion. Legislation which has a differential impact on persons of a certain background or age may be indirectly discriminatory though in the present case no question of religious or sexual discrimination arises. It is a different question from whether the Minister's proposals are in breach of an obligation 'to promote equality of opportunity'. Ms Higgins sought to argue that this should be interpreted as including the opportunity not to disadvantaged. All criminal or quasi-criminal legislation will impact on persons breaking the law as determined by the legislature. The present legislation if it goes though would deal with anti-social behaviour as defined. No body of either sex or any class, creed, age or ethnic background is free to disregard the ordinary law or is entitled to carry out anti-social act as defined, all are free to obey the law. I can see no arguable case that the proposal to introduce this legislation in any way infringes the Minister's obligation to promote equality of opportunity. Counsel has failed to persuade me that there is any arguable case on this point."