Visit JCPCUKSC/2025/0042
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DEVOLUTION
A Reference by the Attorney General of Northern Ireland of a devolution issue under paragraph 1(b) of Schedule 10 to the Northern Ireland Act 1998
Contents
Case summary
Case ID
UKSC/2025/0042
Parties
Appellant(s)
Attorney General for Northern Ireland
Respondent(s)
Advocate General for Northern Ireland
Lord Advocate
Counsel General for Wales
Minister of Health
Issue
“Whether the Minister of Health has power to revise the Deprivation of Liberty Safeguards Code of Practice issued under s.288 of the Mental Capacity Act (Northern Ireland) 2016 (‘the 2016 Act’) so as to provide that, in the context of the delivery of care and treatment, individuals aged 16 and over with impaired decision-making may be understood to be consenting to confinement through the expression of wishes and feelings, so that their circumstances do not fall within the scope of Article 5 of the European Convention on Human Rights (‘ECHR)’)”
Facts
Under the Northern Ireland Act 1998, a “devolution issue” (including whether an act of the government of Northern Ireland would be invalid as breaching the rights protected by the ECHR) may be referred to the Supreme Court for determination. The Attorney-General for Northern Ireland has referred the above question to the Supreme Court. The question arises in the context of the provision of care and treatment for persons with cognitive impairments, and how their rights to liberty and security – under Article 5 of the ECHR – are safeguarded. The Attorney-General considers that the proposed revisions to the Deprivation of Liberty Safeguards Code of Practice (the “Code”) would adopt an approach to the scope of Article 5 which would differ from that outlined by the Supreme Court in the case of P v Cheshire West and Chester Council & Anor [2014] UKSC 191; [2014] AC 896, but which would nonetheless satisfy the requirements of Article 5. Accordingly, the Attorney-General seeks confirmation that the Minister of Health would have the power to issue the revised Code.
Date of issue
13 March 2025
Case origin
Reference