In the matter of an application by Peter Neill for judicial review
| Jurisdiction | Northern Ireland |
| Judge | Girvan J |
| Judgment Date | 2005 |
| Neutral Citation | [2005] NIQB 66 |
| Date | 07 October 2005 |
| Court | Queen's Bench Division (Northern Ireland) |
1
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
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QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
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IN THE MATTER OF AN APPLICATION BY PETER NEILL FOR
JUDICIAL REVIEW
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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
2
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
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