Anti-Social Behaviour Order – challenge to validity of 2004 Order – whether Secretary of State failed to give proper consent to draft legislation – whether breach of section 8 of the Northern Ireland Act 1998 – duty to have due regard to need to promote equality of opportunity – whether duty broken – NIO equality scheme – whether breach of scheme – investigation by ECNI – whether ECNI Report legally flawed – whether ECNI had jurisdiction to carry out investigation – whether complaint to ECNI made by a party directly affected.

 

Neutral Citation No. [2005] NIQB 66

Ref:    

GIRC5372

 

 

 

Judgment: approved by the Court for handing down

Delivered:

07/10/2005

(subject to editorial corrections)

 

 

 

2005 No. 21782 

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

 ________ 

 

QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)

 

 ________

 

IN THE MATTER OF AN APPLICATION BY PETER NEILL FOR JUDICIAL REVIEW

 

 ________

 

GIRVAN J

 

Introduction

 

[1]        The applicant brings this judicial review to quash a summons issued against him by Superintendent Cotton on 4 May 2004 pursuant to article 3 of the Anti-Social Behaviour (Northern Ireland) Order 2004 (“the 2004 Order”). He seeks an order of mandamus compelling the Secretary of State to direct the relevant public authorities to suspend the issue of applications for Anti-Social Behaviour Orders (“ASBOs”) under the 2004 Order until the Northern Ireland Office complies with its obligations under section 75 of the Northern Ireland Act 1998 (“the 1998 Act”) and conducts an equality impact assessment into the operation of the 2004 Order as recommended by the Equality Commission for Northern Ireland (“the Commission”).  Also, by way of amendment to the original application, a declaration is sought that article 3 of the 2004 Order is ultra vires the 1998 Act because of (a) the failure of the Secretary of State to comply with section 75 of the Northern Ireland Act 1998  and (b) his failure to provide consent pursuant to section 8 of the 1998 Act and paragraph 1 of the Schedule to the Northern Ireland Act 2000 (“the 2000 Act”) to enable Her Majesty in Council to legislate on the reserved matters with which the 2004 Draft Order dealt.  The applicant also challenges the Anti-Social Behaviour (2004 Order) (Commencement No. 1 Order (Northern Ireland) and the No. 2 Commencement Order 2004.

 

The wider context of anti-social behaviour law

 

[2]        As I pointed out in my judgment in Re Landlords Association for Northern Ireland [2005] NIQB 22 there is an emerging body of law, anti-social behaviour law, which is unique to the United Kingdom (see for example Collins and Cattermole in their new textbook “Anti-Social Behaviour Powers and Remedies”).  This body of law includes the pre-existing common law and statutory law, the recent reforms in that field and embraces new laws which have the common aim of regulating conduct in public so as to protect and enhance the communities and the common good.  The legislation under consideration in the present application form part of that corpus of law.

 

[3]        In R v Crown Court at Manchester ex parte McCann [2003] 1 AC 787 the House of Lords had occasion to consider whether anti-social behaviour orders (ASBOs) were civil orders for the purposes of convention law.  In the course of his speech Lord Steyn succinctly described the problem of anti-social behaviour thus:

 

“It is well known that in some areas, notably urban housing estates and deprived inner city areas, young persons and groups of young persons cause fear and distress and misery to law abiding and innocent people by outrageous anti-social behaviour.  It takes many forms.  It includes behaviour which is criminal such as assaults and threats, particularly against old people and children, criminal damage to individual property and amenities of the community, burglary and theft and so forth.  Sometimes, the conduct falls short of recognisable criminal offences.  The culprits are mostly but not exclusively male.  Usually they are relatively young… in recent years this phenomenon became a serious social problem.  There appears to be a gap in the law.  The criminal law offered insufficient protection to communities.  Public confidence in the rule of law was undermined by the not unreasonable view in some communities that the law had failed them.”

                                       

[4]        There is no question that people have the right to be protected against harassment, alarm, distress and anti-social behaviour.  Collins and Cattermole point out that as an instance of so called communitarian policy such provisions on occasions may not sit well with civil liberties or the Human Rights Act 1998.  The European Court of Human Rights has, however, recognised as a feature of citizens’ rights under Article 8 of the Convention that the state authorities may on occasions have a duty to take steps to deal with what can be broadly termed third party nuisance behaviour.  In its decision in  Moreno-Gomez v Spain (Application No. 4143-02, 16 November 2004) (helpfully discussed in an article in the New Law Journal on 18 February 2005) the court gave a decision on a complaint made against Spain as a result of Valencia City Council’s failure to take steps to tackle noise and vandalism near a person’s home.  It followed a decision in Surugiu v Romania (Application No. 48995-99, 20 April 2004) in which a complaint was made relating to the failure of Romanian authorities to protect a Romanian citizen from serial and malicious manure dumping.  In both cases the court held that the state authorities had failed to discharge their obligation to take steps to protect their citizens from third party nuisance.  In Moreno-Gomez the applicant moved into a flat in Valencia’s residential quarter.  In 1974 the City Council began to permit bars and nightclubs to open nearby.  Local residents first complained of noise and vandalism in 1980.  In 1983 the City Council resolved not to permit any more nightclubs to open in the area.  The resolution was not implemented and new licences were in fact granted.  Despite the designation of the area as an acoustically saturated zone and the enactment of byelaws prohibiting excessive noise the Council granted a licence for a nightclub to operate from the building where the applicant’s flat was located.  The Spanish Constitutional Court refused her claim for breaches of the Spanish Constitution reflecting Article 8 on the basis that there was no evidence of damage to her health.  The European Court of Human Rights held that under Article 8:

 

“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.”

                       

[5]        Edward Mitchell in his article in the New Law Journal comments that the decision is a pronouncement by the European Court that the Convention States should order their internal affairs so that effective steps are taken to tackle sufficiently serious nuisance behaviour.  He points out that the emanations of the United Kingdom state that have responsibility in this respect are primarily the police and local authorities.  Therefore, he argues, these are the bodies that the courts should take to be responsible for ensuring that the United Kingdom’s positive obligations to tackle sufficiently serious nuisance behaviour is discharged.  They should assume that they have a legal obligation to act to address sufficiently serious nuisance behaviour.  It does not matter that these public bodies have generally statutory powers not duties to tackle nuisance behaviour.  If a power has to be exercised to avoid a breach of the rights protected by the Human Rights Act 1998 it must be so exercised.  It is against this Convention background that the state authorities had to make decisions relating to the introduction of legislation to mitigate the real social problems of anti-social behaviour. 

           

The factual background

 

[6]        When the ASBO application came on for hearing before the Resident Magistrate at Coleraine in May 2005 the complaint was adjourned to 23 May.  The applicant’s solicitor became aware that the Commission had conducted an investigation under para. 10 of Schedule 9 of the 1998 Act into the making of the 2004 Order and had made certain recommendation thereon to the Secretary of State.  He sought an adjournment of the complaint in order that the position relating to the legality of the 2004 Order be clarified.  The complaint stands adjourned pending the outcome of this judicial review.  It appears that pending determination of this judicial review other ASBO applications remain unresolved. 

 

[7]        The case against the applicant is that over a protracted period he has been involved in on-street drinking, noisy house parties, receiving drug takers in his house and causing damage and litter.  It is alleged that his conduct has rendered Northern Ireland Housing Executive houses in the local area unlettable and local residents have applied to leave the area.  There is also alleged against him a litany of aggressive acts, threats and abusive conduct.  Included is an allegation that in March 2005 he was in possession of a machete.  These allegations which are supported by evidence of a substantial number of witnesses if made good on the hearing of the complaint are the very stuff of the type of anti-social behaviour now prevalent in society that led to the decision to introduce the anti-social behaviour legislation which falls for consideration in this case. 

 

The applicant’s preliminary challenge to the legislation

 

[8]        Before turning to consider the wider issues raised in this case which were the subject of wide ranging submissions it is necessary to deal firstly with Mr Larkin QC’s technical point which he argued was fatal to the validity of the 2004 Order.  The 2004 Order was enacted as an Order in Council under section 1 of the Northern Ireland Act 2000.   While that section remains in force the Northern Ireland Assembly is suspended and accordingly has no legislative powers.  Her Majesty in Council may make provision for any matter for which the 1998 Act authorises or requires provision to be made by an Act of the Assembly.  However, a provision which would be outside the legislative competence of the Assembly may not be included in such an Order in Council (see para. 1(i) and (ii) of the 2000 Act).  Under the provisions of the  1998  Act section 8 provides that the consent of the Secretary of State shall be required in relation to a Bill which contains provisions which deal with a reserved matter.  Under Schedule 3 of the 1998 Act reserve matters include the criminal law and the creation of offences and penalties (para. 9) and the maintenance of public order (para. 10).  Following suspension the Secretary of State was required, according to Mr Larkin, to turn his mind to whether legislation should be by way of Order in Council or by way of a general act of Parliament.  Before going down the route of seeking to legislate by Order in Council it was argued that the Secretary of State is required to give his formal written consent to the proposed legislation. 

 

[9]        Mr McCloskey QC contended that the legislative competence of the Queen in Council was not dependent on the consent provisions of section 8 which related only to Bills before the Northern Ireland Assembly.  The 2000 Act does not incorporate the consent requirement or the procedural requirements set out in the 1998 Act.  The Northern Ireland Office of which the Secretary of State is the responsible Minister was the sponsoring department presenting the legislation to Parliament.  It was patently clear, he argued, that the Secretary of State was “consenting” to the proposed legislation.  No Order in Council is laid before the Queen in Council without the approval of the Secretary of State. 

 

[10]      A supplementary affidavit sworn by Adrian Arbuthnot who is head of the NIO Criminal Justice Policy Division and who had responsibility for the 2004 Act made clear that the Secretary of State was informed of the outcome of consultation and on 28 June 2004 approved the laying of the Order in Council.  The draft was debated in Parliament in the Northern Ireland Affairs Committee on 13 July 2004 and in the House of Lords on 27 July 2004.  It was then made by Her Majesty in Council on 27 July 2004. 

 

[11]      Mr McCloskey having pointed out to the court that the issues raised by Mr Larkin raised a devolution issue, due notice was given to the Attorney General and to the Office of the First Minister and Deputy First Minister whose functions are currently vested in the Secretary of State.  The necessary procedural steps for the determination of the devolution issue were accordingly satisfied. 

 

[12]      The primary dictionary meaning of the verb consent is “to be of the same mind; to agree; to give assent to” and the noun “consent” is “agreement; accordance with the actions or opinions of another; concurrence.”  The etymology of the word consentirecon-sentire is also instructive.  The Secretary of State has clearly given his assent to the laying of the legislation by way of order in counsel.  Not merely has he assented as the Minister responsible to the laying of the order, he was the Minister answerable to Parliament for the actions of his Department and this legislation in reality his proposed legislation.  Requiring a formalised written consent to himself to do what he fully wishes and intends to do makes no real sense.  As Mr McCloskey contended, the procedural context of the giving of a consent to a Bill of the Assembly is wholly different from the context of the introduction of legislation by the Secretary of State himself under the Direct Rule provisions.  Section 8 of the 1998 Act relates to Bills of the Assembly and makes workable sense in that context.  I hold accordingly that the 2004 Order is not procedurally flawed, as Mr Larkin contends, and accordingly I reject his section 8 point.                                      

 

The statutory context of the dispute

 

[13]      On 8 January 2004 the Government produced a consultation document entitled “Measures to Tackle Anti-Social Behaviour in Northern Ireland.”  The consultation process ended on 1 April 2004.  Following consultation the Government decided to introduce ASBOs in Northern Ireland and a proposal for a draft Order in Council was published for consultation on 10 May 2004.  The proposal took account of points made by the children’s lobby in the course of the previous consultation exercise.  The four week consultation period was extended for five weeks.  The Northern Ireland Commissioner for Children and Young People (“the Commissioner”) challenged the decision to lay the proposed for a draft Order in Council before Parliament and to shorten the consultation period in respect of the draft legislation.  This application was dismissed and on 27 July 2004 the Order was made. 

 

[14]      In article 3 of the 2004 Order provision is made for empowering relevant authorities to bring an application by way of complaint to a Magistrates’ Court for an Anti-Social Behaviour Order (an ASBO) if it appears to the relevant authority that the conditions therein set out are fulfilled with respect to a person aged 10 years or over.  These are that the person has acted since the commencement date in an anti-social manner  (that is to say in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself) and that such order is necessary to protect relevant persons from further anti-social acts by him.  The court must disregard any act of that person which he shows was reasonable in the circumstances.  If the court is satisfied that the conditions are fulfilled the court may make an order which prohibits the defendant from doing anything described in the Order, that is to say things which are necessary for the purpose of protecting persons from further anti-social acts.  The criminal courts have a similar power to impose an ASBO when a person is convicted of an offence.  Once an ASBO is made it is a criminal offence if without reasonable excuse a person does anything which he is prohibited from doing by an ASBO.  The legislation contains a protection in relation to the reporting of proceedings for orders against children.  The 2004 Order was commenced in two stages.  Articles 3 to 8 were commenced on 25 August 2004 by the No. 1 Commencement Order and Article 6 was commenced on 15 December 2004 by the No. 2 Order. 

 

[15]      In the course of the arguments in this case the provisions of section 75 and Schedule 9 of the Northern Ireland Act 1998 were relied on.  Section 75 of the 1998 Act provides:

 

“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.”

 

[16]      Under Schedule 9 of the 1998 Act para. 1 charges the Commission with the obligation to keep under review the effectiveness of the duties imposed by section 75, to offer advice to public authorities and others in connection with those duties; and carry out the functions conferred on it by the succeeding provisions of the schedule.  Under para. 2 of the Schedule public authorities are required to submit an equality scheme to the Commission within a timeframe.  This scheme must show how the public authority proposes to fulfil the duties imposed by section 75 in relation to the relevant functions.  Para. 4(2) sets out the matters which the scheme should state.  These include the arrangements for assessing compliance with the section 75 duties and consulting in matters in relation to which a duty under that section is likely to be relevant; for assessing and consulting on the likely impact of policies adopted or proposed to be adopted by the authority on the promotion of equality of opportunity; for monitoring adverse impact of policies and so forth.  A scheme must conform with guidelines as to formal content issued by the Commission with the approval of the Secretary of State, specify a timetable for measures proposed in the scheme and include details of how it will be published.  Under para. 9 in publishing the results of an assessment such as mentioned in para. 4(2)(b) a public authority shall state the aims of the policy to which the assessment relates and give details of any consideration given by the authority to measures which might mitigate any adverse impact of the policy on the promotion of equality of opportunity and alternative policies which might better achieve the promotion of equality of opportunity. 

 

[17]      Of particular relevance in the context of the present dispute are the provisions contained in paras. 10 to 12 of the Schedule.  These paragraphs provide as follows:                   

 

“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

 

[18]      The 1998 Act provides that equality schemes produced by public authorities should conform to any guidelines as to form and content issued by the Commission with the approval of the Secretary of State.  The Guidelines were duly published and included guidance relating to public authorities’ arrangements for assessing and consulting on the impact of policies adopted or proposed to be adopted on the promotion of equality of opportunity.  Under the heading “Screening Procedures” in relation to a the proposed policy the Guidelines provide:

 

“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

 

[19]      The NIO drew up an equality scheme (“the Scheme”) showing how it proposed to fulfil the duties imposed by section 75.  Part 3 of the Scheme provided for the assessment of impact of policies on the promotion of equality of opportunity.  Annex B set out the main groups within each of the nine sections of the five categories.  Under the category of “age” the main groups are defined as “children under 18; people up to 25; people of working age (16-65); people over 65.”  Para. 3.2 of the Scheme provided that:

 

“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

 

[20]      The NIO submitted its ASBO proposals to equality scheme screening using a standard form of questionnaire.  The function identified was “the proposal to introduce a system of acceptable behaviour contracts and anti-social behaviour orders for dealing with anti-social behaviour in Northern Ireland.”  The first question raised was whether the function referred to involved any action which was likely to have an adverse differential impact on a person on the basis of gender, sex or religion, political opinion, disability, race or ethnic origins, age, marital status or dependency status.  The answer to that was in the negative in relation to each group.  The second question was whether the function referred to admitted any action, the addition of which would promote the equality of opportunity, social inclusion and welfare of any person on the basis of members of any of the relevant groups.  The answer to that was ‘no’.  The third question was whether there was any conflict between the rights of any one person and those of any other person contained within the effects of the function.  This was answered ‘yes’ and paragraph 3B went on to state:

 

“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.     

 

[21]      Para. 5 of the form is the screening analysis.  It stated that screening aimed to identify those policies, functions and duties which are likely to have the greatest impact on equality of opportunity and community relations.  In section 5.1 on the question of whether there was evidence of higher or lower participation or uptake by different groups within any of the nine categories the answer was ‘yes’.  The form went on to state:

 

“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

 

[22]      Mr Larkin’s case proceeded on the basis that the 2004 Order is flawed legislation in that it was introduced and passed in breach of section 75 of the 1998 Act.  Legislation made without due regard for or against the objects protected by section 75 is unlawful.  As a result of the detailed investigation conducted by the Commission is was plain that the Northern Ireland Office had failed to comply with the requirements of section 75.  The Commission finding was that the NIO had failed to comply with the equality scheme.  Although the NIO was contending that the Commission report was bad in law (a challenge which, it was contended, only came after the present case was brought) it was not open to the NIO to challenge the findings of the Commission report in a collateral challenge.  While it might well be open to the respondent to introduce legislation with the same objects and techniques as those contained in the 2004 Order it was not open to the respondent to refuse to consult fully about the legislation once it had discerned the possibility of disparate impact, as it had.  Mr Larkin contended that even if the 2004 Order itself could not be challenged the commencement orders which were subordinate to delegated pieces of legislation could be challenged on the basis that the Secretary of State in enacting those regulations had failed to take into account a relevant consideration namely that the implementation of the 2004 Order would be a breach of the duty to have due regard to the need to promote equality of opportunity.  Equality of opportunity is to be construed as equal opportunity in all social and economic activities, that being the concept contained in the Good Friday Agreement which was the genesis of the provisions in Section 75.

 

The Commission investigation and report

 

[23]      It is clear that central to the present dispute is the Commission’s report and its investigation leading to that report.  Following earlier correspondence from the Children’s Law Centre (“the CLC”) in May 2004  on 17 June 2004 the Commission received a complaint from the CLC which alleged that the Northern Ireland Office had failed to conduct an equality impact assessment in respect of the measures contained in the NIO consultation paper “Measures to Tackle Anti-social Behaviour in Northern Ireland”.  The letter was expressed to be a formal complaint to have a Schedule 9 paragraph 10 investigation carried out.  The complaint was threefold:

 

“(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.”

 

[24]      After receiving the complaints the Commission tasked Mr O’Neill, the statutory duty investigation officer, with the duty of carrying out a preliminary investigation in respect of the complaints.  The Statutory Duty Investigations Committee authorised an investigation pursuant to paragraph 10 into two potential failures by the NIO to comply with its approved equality scheme, namely in relation to the adequacy of the screening exercise conducted on the ASBOs proposals and the adequacy of the consultation exercise carried out as part of that process.  The Committee satisfied itself that the fourth threshold criteria set out in Article 10(2), (3), (4)(a) and (4)(b) of Schedule 9 had been satisfied. In relation to the question whether CLC (which was a company limited by guarantee) was a person claiming to be “directly affected” the Committee concluded that it was open to it to test the bona fides of such a claim.  The Committee determined that the appropriate course of action in the case of a well established legal person claiming to have been directly affected was to reserve the Committee’s right to give reasons for not investigating the complainant and the paragraph 10(1)(b) rather than questioning the bona fides as a claim in such circumstances.

 

[25]      The NIO was informed by letter 24 and 25 June of the decision to proceed with the investigation.  The NIO made representations on 28 June 2004 referring in particular to the judgment in Re Northern Ireland Commissioner for Children and Young People [2004] NIQB 40.  Notwithstanding the representations the Committee considered that an investigation was warranted.

 

[26]      On 28 June 2004 the draft 2004 Order was duly laid.  As already stated it was debated in the Northern Ireland Affairs Committee on 13 June 2004 and the House of Lords on 20 July 2004 and was made on 27 July 2004 with its main provisions commencing on 25 August 2004.

 

[27]      Notwithstanding prompting by the Commission the Northern Ireland Office were not forthcoming in responding to requests by the Commission to co-operate in its investigation.  On 12 November 2004 the NIO contended that CLC was not a proper complainant, not being a party “directly affected” by the alleged failure by the public authority to comply with its equality scheme.  In further correspondence the NIO maintained the stance that the CLC did not meet “the strict statutory interpretation of a directly affected body”.  However, the NIO in Mr Marsh’s letter of 3 December 2004 went on to state:

 

“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.”

 

[28]      The investigation proceeded.  In the course of the investigation the focus was on the Scheme which made provision for a screening form recording the screening analysis in relation to the proposal to introduce accepting ASBOs.  As noted the screening form raised the issue whether there was evidence of higher or lower participation or uptake by different groups within any of the nine categories and the answer was in the affirmative (see paragraph 21 above).

 

[29]      The Committee met on 14 February 2005 to debate and discuss the investigation and the adoption of the a draft investigation report.  The draft investigation report was forwarded on 18 March 2005 and both parties were invited to submit representations.  Following the closure of submissions some amendments were made to the report and the final report was adopted by the Commission on 28 April 2005.

 

The Commission Report

 

[30]      The main conclusions on the report can be summarised as follows:

 

(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

 

[31]      The Commission considered that in light of the reasons provided by the NIO for excluding this policy for equality impact assessment that it would be insufficient to recommend that the NIO carry out a further screening exercise.  It recommended that to comply with its approved equality scheme the NIO must undertake an equality impact assessment of the 2004 Order policy in relation to is potential impact on children and young people. It recommended that the assessment be commenced on 1 June 2005 and that the NIO report on progress on such assessment to the Commission’s statutory duty team by 5 August 2005.  It further recommended that in future screening exercises the NIO should set out its reasons for not undertaking a full equality impact assessment at the initial screening test, ensure that any reasons given for not undertaking an assessment are adequate reasons in relation to significant implications for equality of opportunity, disclose for the purpose of consultation any evidence of differential impact identified in the initial screening exercise and address representations of significant adverse impact which emerged from the consultation process. 

 

The NIO criticism of the Commission Report

 

[32]      Mr Alford in his affidavit on behalf of the NIO contended that the Commission report was unlawful.  The Commission had no jurisdiction to entertain the complaint because CLC was not a directly affected party.  The conclusions in the report were irreconcilable with the judgment in Re Northern Ireland Commissioner for Children and Young People and failed to take account of the ruling.  The impugned report was unreasonable, misconstrued the scheme and purported impermissibly to supplement the provisions thereof.  It erred in law in purporting to find on a comparison between travellers and pregnant women (on the one hand) and anti-social citizens on the other.  It had misdirected itself in purporting to find on the view wrongly attributed to the NIO that the potential adverse impact of the 2004 Order was intentional.  It failed to recognise that the NIO’s screening exercise did identify the potential for adverse impact.

 

The NIO’s contentions

 

[33]      Mr McCloskey by way of his primary contention argued that there was no warrant for the suggestion that full compliance by the NIO with section 75 in the pre-legislative stage was a pre-requisite of the lawful exercise by the Crown of its prerogative rights to make the 2004 Order.  Parliament had not provided that a breach of the duty under section 75 rendered legislation invalid.  Section 75 imposed specific duties on public authorities and provision was made for enforcement by sub-section (6) by reference to Schedule 9 which established the machinery whereby the Commission must approve each public authority’s Equality Scheme, may entertain and investigate specified complaints about compliance by public authorities with the Schemes; may compile a report on any such investigation; may recommend specific action and may in certain circumstances notify the Secretary of State.  This was intended to be an exhaustive regime.  Section 75 does not import procedural requirements into the process of making this legislation.  The legality of the actions of the sovereign in exercising powers to make the 2004 Order was in no way dependant upon the carrying out of a consultation process by the NIO.  The advocate’s challenge would undermine the principle of legal certainty and frustrate the clear intention of Parliament to legislate in this way.  If Parliament had intended the impact of section 75 to be that subordinate legislation could be judicially investigated and in appropriate circumstances struck down long after the events a different statutory model would have been established.  Mr McCloskey went on to challenge the validity of the Commission’s report and recommendations, the existence of which formed the bedrock of the applicant’s case.  He contended that the Commission had approached the question whether the applicant was a “directly affected” party in the wrong way. Being directly affected and having a sufficient interest (the latter test being the judicial review test) were different concepts.  CLC was not a directly affected party.  The investigation was purportedly carried out under para. 10 and could not be treated as a para. 11 investigation if the Commission did not have jurisdiction to carry out the investigation under para. 10.  Counsel contended that the report could not be reconciled with the decision in Re Northern Ireland Commissioner for Children and Young People  having regard to the court’s approach to the duty and to promote equality of opportunity, is a concept of limited application in relation to the criminal or quasi-criminal field.  Section 75 is not designed to provide any protection or advantage or to avoid any disadvantage to those who elect to contravene the criminal or quasi-criminal law.

 

[34]      Counsel contended that the NIO’s screening exercise was productive of an affirmative answer to the test enshrined in para. 22 of the Scheme.  The evidence was that the NIO proceeded to consider whether a full blown equality impact assessment was necessary, concluding that it was not, for the reasons approved in the Re Northern Ireland Commissioner for Children and Young People judgment.  Clearly it was rational to conclude that an equality impact assessment would add nothing of value in circumstances where the adverse impact would flow from freedom of choice.  In relation to the conclusion whether to conduct an equality impact assessment on the basis that there were no contemporaneously documented reasons for not doing so.  It was contended that this was a manifestly unreasonable conclusion expressed in unreasoned terms.  Reasons of this kind are not required to be contemporaneously documented.  There was no rational basis for rejecting the NIO’s explanation and the Commission was impermissibly supplementing the scheme.  In relation to the conclusions in relation to consultation it was contended that the actual complaint made by the CLC was a quite different complaint from the one investigated and reported on by the Commission. 

 

[35]      Ms McGrenara on behalf of the Commission made clear that the Commission was not taking any view about the legality of the 2004 Order.  She challenged the right of the NIO to make a collateral challenge to the Commission’s report in the current proceedings and she contended that the Commission was fully justified in entertaining the complaint and in reaching the conclusions reached.  Her argument was supported by counsel for the CLC, the Commissioner and the CAJ who had been given leave to intervene in the proceedings.  It was contended that the Commission was a specialised expert in equality law matters and was mandated by the legislation to approve equality schemes, provide advice to public authorities, produce guidance for approval by the Secretary of State and to conduct investigations and produce reports.  Counsel challenged the right of the NIO by the back door to judicially review the actions of the Commission.  The NIO had not challenged the Commission’s investigation and had agreed to participate in the investigation agreeing to leave aside its argument that CLC was not a directly affected party.  By taking that stance it knew that the Commission would proceed with an investigation and that a report would be produced.  When the report was produced it indicated a preparative to attend to the recommendations contained in the report.  The proper approach to the 1998 Act is to regard it as constitutional in nature and its provisions should be interpreted generously and purposively, bearing in mind the values which the constitutional values were intended to embody.  It must be construed against the background of the political situation in Northern Ireland and the principle set out in the Belfast Agreement (see Robinson v Secretary of State for Northern Ireland [2002] NI 390. 

 

[36]      In determining that CLC was a party which claimed to be directly affected the decision used the term “sufficient interest” as an exclusionary device so as to rule out complaints made by those who claim to have been directly affected but who did not in reality have a sufficient interest to satisfy the statutory test.  Since children and young people could not be expected to make complaints it is appropriate for such complaints to be advanced by those representative experts working in the field of children’s’ rights.  The NIO recognised CLC was a person directly affected by naming it as a consultee in Annex C of its approved equality scheme.  The judgment in Re Northern Ireland Commissioner for Children and Young People did not preclude the investigation.  The purpose of screening was to identify those policies which are likely to have a significant impact on equality of opportunity and the Commission rejected the NIO’s stated reason for not undertaking an equality impact assessment which focused on the reasons of the adverse impact and the fact that such impact was not intentional rather than on the potential for adverse impact and whether the policy was likely to have significant impact on equality of opportunity.  In deciding whether the failures to comply with the Scheme as alleged had been established it was entirely reasonable for the Commission to take the substance of the statutory duty into account in considering whether, in its purported compliance with the Scheme, the Department has shown due regard to the need to promote equality of opportunity.

 

The decision in Re Application of the Northern Ireland Commissioner for Children and Young People [2004] NIQB 40

 

[37]      The Commissioner sought judicial review of the decision announced by the Minister of State to put before Parliament’s proposed ASBO legislation.  The Commissioner alleged that the legislation infringed various provisions of the Convention and provisions of the Children’s Convention and the Beijing Rules.  It was also alleged that the Minister was in breach of section 75.  The attack was based on an alleged failure to consult properly, particularly a failure to consult with children on the proposed legislation; breach of section 75 and a failure to comply with the Departmental Equality Scheme,  alleged incompatibility of the proposed legislation with the Convention and the Children’s Convention, bias by the Minister and failure to give proper weight to the Commissioner’s views. 

 

[38]      I rejected the application and pointed out at para. 15 of my judgment:

 

“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.”

 

[39]      In relation to the alleged breach of section 75 in the Act I said at para. 13:

 

“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.”

 

[40]      This passage in the judgment was debated in the submissions in the present applications and it will be necessary to come back to it later in this judgment.  In this court the court received a very much fuller and differently framed argument on the issues on section 75 as compared to the arguments in the decision in Re Northern Ireland Commissioner for Children and Young People [2004] NIQB 40. 

 

Mr McCloskey’s primary contention    

 

[41]      As Mr McCloskey’s argument shows the first question to be answered is whether the legislation must stand whether or not the Commission’s report and recommendations are legally correct or flawed.  The first point to bear in mind is that section 75 does not contain any provision that a breach of that duty to have due regard to the need to promote equality of opportunity renders legislation invalid.  This is in marked contrast to the provisions of section 76 which in sub-sections (5) and (6) contains express provisions making it unlawful to make, confirm or approve subordinate legislation which discriminate against a person or class of persons on the ground of religious belief or political opinion if the provision extends  to the whole or any part of Northern Ireland. Section 76(2) renders unlawful discrimination actionable whereas a breach of section 75 does not give rise to a cause of action.  Section 6 of the 1998 Act provides that a provision is outside the legislative competence of the Assembly if (e) “it discriminates against any person or class of persons on the ground of religious belief or political opinion.”   There is no equivalent restriction on the competence of the legislature where a provision fails to have due regard to the need to promote equality of opportunity. 

 

[42]      The way in which the “due regard” duty is enforced is provided for in Schedule 9.  The history of the background to the drafting of the 1998 legislation which is helpfully set out in an article by Professor McCrudden “Mainstreaming Equality in the Governance of Northern Ireland” (22 Fordham International Law Journal 1696) bear out the clear impression emerging from the wording of section 75 that Schedule 9 represented the legislature’s decision as to how effect would be given to the enforcement of section 75 duties.  The width, ambit and boundaries of the concept of equality of opportunity are not particularly clearly delineated. Parliament appears to have opted for a wide concept and recognised that giving effect to the obligation to have “due regard” to the need to promote equality of opportunity would call for structured assessment, consultation, monitoring and publicity.  It has in Schedule 9 set out a quite complex machinery for the introduction and approval of equality schemes and mechanisms for ensuring compliance with such schemes.  Alleged breaches of schemes are to be the subject of investigation and reporting with political consequences.  It appears that the legislature, no doubt by way of a political compromise, opted for that route to remedy breaches of schemes rather than by conferring rights to be asserted by action or other litigious means.  The consequence in the present instance is that the 2004 legislation is not open to challenge in the way provided for in relation to section 76.  This consequence applies both to the 2004 Order itself and to the Commencement Orders.  These latter orders represent subordinate legislation.  Such legislation can be challenged in section 76 situations but by necessary inference from the 1998 Act, read as a whole, not in the context of an alleged breach of section 75 duty for which the only statutory remedy lies down the schedule 9 route.  Accordingly I accept Mr McCloskey’s primary submission. The conclusion which I have reached in relation to the primary submission disposes of the applicant’s case and, accordingly, on the proceedings as currently constituted it is strictly unnecessary to go further.  However, having regard to the argument presented and bearing in mind that this case may go further, I shall state my conclusions on the other issues raised in the argument namely whether the Commission’s report is legally flawed and can be challenged in the collateral attack made by the NIO.  There is currently no application before the court to quash the report and recommendations made by the Commission.  The Secretary of State indicates that he has not come to any concluded view as to what his response to the report would be if it is not an unlawful report.  The Commission are concerned to know the legal status of its report bearing in mind that, amongst other things, the report may be laid before Parliament.

 

[43]      The framework of the Scheme set out in Schedule 9 makes compliance by public bodies with their equality scheme central to the fulfilment of their section 75 duties.  The Commission is empowered to keep the effectiveness of section 75 duties under review, to give advice and to carry out the statutory functions in the schedule.  Its powers of investigation and report are an important part of the mechanisms to ensure implementation of the section 75 duties and to lead to improvement in the future in relation to the promotion of equality of opportunity.  The Schedule thus envisages a dynamic role for the Commission to advance equality of opportunity, a role that falls to be carried out in accordance with the statutory remit contained in the Schedule.  In approaching the provisions of section 75 and Schedule 9 one must bear in mind that these provisions are part of a statute intended to be a new constitution for Northern Ireland framed against the background of the history of Northern Ireland and the principles agreed in the so-called Good Friday Agreement.  The Agreement was the product of multi-party negotiations and was intended to be a balanced and carefully nuanced constitutional arrangement.  The equality provisions were a central part of the new arrangements (see generally Robinson v Secretary of State for Northern Ireland  [2002] UKHL particularly the speeches of Lord Bingham and Lord Hoffman).  

 

[44]      Mr Allen QC in his persuasive submissions on behalf of CAJ argued that the court’s approach to the Commission’s report should take careful note of the role and function of the Commission manifestly emerging from Schedule 9.   The Commissioner is given a didactic, collaborative, advisory, investigative and reporting role which is different from the role of a adjudicative tribunal.  The report in a case such as the present, accordingly, should not be approached in an narrowly restrictive or legalistic way.  None of the manifest purposes of Schedule 9 would be achieved by adopting a narrow legislative formal approach.  In approaching the Commissioner’s report due deference must be given to the Commission, an expert body charged with the functions of advancing equality issues and fulfilling the functions set out in Schedule 9.  The report would have to be shown to be irrational, a report which no body such as the Commission carrying out such functions could have made.  In the main I agree with the approach suggested by Mr Allen.  The concept of promoting equality of opportunity which is no where defined is clearly intended to be a wide and dynamic one.  Schedule 9 represented a political compromise as to how effect could be given to the need to promote equality of opportunity.  The powers and functions of the Commission should be seen in the context of the legislature’s decision as to what teeth should be given to the enforcement of the duty to promote equality of opportunity.  Those teeth, however,  were somewhat less sharp than those made available in relation to a breach of the duty not to discriminate.  The  powers and duties of the Commission must be interpreted in a way that does not emasculate the role of the Commission.

 

[45]      The Secretary of State’s first challenge to the Commission report was that the Commission had no jurisdiction to entertain the complaints since the CLC was not a party “directly affected”.  The statute does clearly require the Commission to investigate a complaint if made by a person who claims to be directly affected by the alleged failure to comply with the statutory scheme.  Before a complaint can be investigated the complainant must bring the complaint to the notice of the public authority and give the public authority a reasonable opportunity to respond.  There is also a statutory timetable within which a complaint can be brought.  These conditions represent conditions precedent to the jurisdiction of the Commission to investigate.  One cannot avoid the conclusion that Parliament did introduce conditions and limits to the investigative power of the Commission in relation to the complaints of individuals but Parliament went on to give the Commission a wider power in para. 11 to carry out an investigation where it considered a breach of a scheme had occurred.  The condition that the complainant must claim to be directly affected is a statutory condition.  The CLC clearly has a legitimate interest in the policy both as a named consultee in the NIO Scheme and as a body representing children’s interest.  However, I do not consider that it could be said to be “directly affected”.  It could never be the subject of an ASBO.  As a body corporate it could not suffer the consequences of anti-social behaviour since the legislation appears to be directed at behaviour likely to cause harassment, alarm and distress to one or more persons not of the same household, pointing to persons meaning individuals.  Faced with a complaint from a person who is not directly affected the Commission can decide to investigate not under para. 10 but under its wider investigatory power under para. 11 if it considers that the circumstances merit an investigation.  Reading paras. 10 and 11 together it is clear that the Commission was intended to have wide investigative powers.  The reasoning relied on by the Commission to justify investigating complaints under para. 10 appears to disregard the necessity of finding that the complainant is directly affected.  While para. 10 relates to a complaint by a person who “claims” to be directly affected it is clearly not enough for the complainant to claim to be directly affected to found jurisdiction.  If the Commission knows that the complainant is not or cannot be directly affected the complaint would be ill-founded.  The logical question for the Commission must be whether it concludes that the complainant is truly a party directly affected by the proposed policy.  The Commission did not approach this jurisdictional question in the correct way.  

 

[46]      Having said that, the NIO took the jurisdictional point belatedly and then appears to have acquiesced in the Commission proceeding.  If the NIO were a party seeking judicial review of the Commission’s report in these circumstances a court would be slow to grant relief on that point.  If the point had been actively taken and pursued the Commission would have been bound to go on to consider whether it should decide to exercise it powers under para. 11(1)(b).  It seems very likely that if it had posed the correct question to itself and concluded that CLC was not a directly affected party it would have gone on to make a decision to investigate under para. 11.  In view of the approach adopted by the NIO in allowing the investigation to proceed the Commission did proceed under para. 10.  I consider in the circumstances it is not open to the NIO to challenge the report on this ground.

 

[47]      A second and more difficult question arises as to whether the Commission misdirected itself on the question of whether the proposal to introduce the legislation could ever be viewed as a failure to have due regard to the need to promote of equality of opportunity.  The term “equality of opportunity” is as already noted an undefined term and one capable of coming into play in a wide range of situations.  As noted in the history of the development of the concept and the introduction of the statutory duty set out in the article by Professor McCrudden the genesis of the term in the 1998 Act was in the Good Friday Agreement which itself drew on earlier uses of the concept, for example in the Government’s PAFT policies.  The concept seems to refer to equality of opportunity in social as well as economic life.  A proposal to introduce a new criminal or quasi-criminal provision designed to regulate individuals’ social lives has clearly the potential of impacting on the social life of individuals and may have a greater effect or impact on particular sections of the community such as, for example, children, juveniles, young people, homosexuals or otherwise.  It would not be an answer to say that once the law is enacted and the action is criminalised an individual from one of the affected groups can have no grievance because he is simply bound to obey the new law.  What must be considered is the policy stage of the evolution of the criminal or quasi-criminal legislation.  Viewing the matter in this way my conclusion in para. 13 of the decision in Re Northern Ireland Commissioner for Children and Young People that there was no arguable case that the proposal infringed the Minister’s obligation to have due regard to the need to promote equality of opportunity was overstating the position.  My decision in that case would for the other reasons given have been the same in any event.  In fairness it must said that the argument in the present case was much fuller and presented differently on this point. The view reached by the court in Re Northern Ireland Commissioner for Children and Young People did not tie the hands of the Commission in its consideration of the complaint since the Commission was looking at a different issue namely whether the NIO law followed its own Scheme.         

 

[48]      In the context of judicial review one decision maker may legitimately reach a view or decision one way.  Another may arrive at a quite different conclusion.  Neither may be legally wrong, having regard to the limits of the Wednesbury irrationality principles and the margin of appreciation of the decision maker. A weighing up of considerations, provided the proper considerations are taken into account, can logically result in potentially different conclusions.  It is perfectly possible that the decision of the Commission (in the sense of its analysis in its report and its recommendations) is a perfectly valid report and at the same time for the decision of the NIO not to be legally flawed provided it proceeded correctly in carrying out its function.  The framework of Schedule 9 is to empower the Commission to make an investigation and produce a report with recommendations and then leave it to the Secretary of State to decide what effect, if any, should be given to the report and the recommendations.  The report, as laid before Parliament, goes into the public domain and the democratic process is the proper forum within which the outworking of the matter takes place.  If  the Secretary of State considers that the report is wrong in its findings or analysis or in the approach to the advancement of equality of opportunity he can, in the forum of Parliament, deal with these points.  The Commission and the Secretary of State meantime can learn from each other in the way in which the matter has developed.  The Commission can in due course take account of any shortcomings the whole process has revealed in relation to the working of the legislation and in relation to the provisions of section 75 itself.

 

[49]      Approaching the matter in this way I consider that the approach for which Mr Allen contended is the correct one.  A narrow legalistic analysis of the Commission report accordingly is inappropriate.  Legitimate criticism of some parts of the report can be made.  The failure to record the reasons for the decision not to carry out an equality impact assessment would probably not as a matter of judicial review law have been fatal to the validity of the NIO decision.  The Scheme did not require reasons to be stated.  The spirit of the Guidelines, it might be argued, supports the view that reasons should be given.  In the context of existing policies under the heading “Screening Procedure” 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 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.  For some reason, a similar provision is not included in the Guidance under the heading “Proposed Policies.”  The view of the Commission that it was implicit that a public authority should give reasons if it decides not to carry out an equality impact assessment is a valid view as to what good practice calls for.  This is different from the question whether it is a legal requirement breach of which invalidates the decision as a matter of public law.  The Commission in carrying out its investigative role and reporting obligation is free to reach views on what should be done as a matter of good practice.  This highlights the difference between the Commission in carrying out an investigative role and a decision maker deciding a matter on strict legal principles.  The conclusion that the failure to record any reasons indicated that it had not given consideration to the section 75 duty as required by para. 3.2 might be well criticised if it purports to be a conclusion of law on the facts.  The conclusion that the reasons subsequently given were unsustainable represented the Commission’s viewpoint of the NIO’s reasoning process.  If the NIO’s decision were being analysised in a judicial review application the NIO could call in aid the point that it had to reach its decision whether to do an equality impact assessment in the light of its view as to whether the proposed policy had “significant” implications for equality of opportunity.  The Guidelines themselves highlight the fact that the relevant public authority has to make a judgment in prioritising issues for equality impact assessment.  Priorities may be established based on factors such as social need effect on peoples’ daily lives and effect on economic, social and human rights. Hence, a  judgment clearly falls to be made as to the significance of the implications for equality of opportunity and that judgment has to be made by the NIO having regard to the other negative answers given in the screening process. While the NIO decision might well have withstood judicial review challenge if judicial review had been an available remedy,  the Commission was approaching and was entitled to approach the matter in a wider way in furtherance of its investigative powers and in pursuance of its supervisory role in relation to the advancement of proper practice in relation to the advancement of equality of opportunity.     

 

[50]      It has not been demonstrated that the Commission in arriving at its report and recommendations approached its task incorrectly, pressed its investigation beyond its proper scope or acted unlawfully or irrationally in coming to the conclusions and recommendations it reached.  In view of the approach to be taken to the question of the validity and status of the Commission’s report I consider that no useful purpose would be served by discussing, analysising or criticising further particular portions of the report.  The challenge to the report was a collateral challenge arising as the result of the primary claim of the applicant which I have dismissed.  It seems unlikely that this dispute between the NIO and the Commission would have otherwise come before the court.  Having regard to the whole structure of section 75 and Schedule 9 it is not the type of dispute that would generally be suitable for the litigious process.   

 

[51]      In the result I dismiss the applicant’s application.  I shall hear counsel on the question of costs and the final form of the order.