Carltona doctrine

From Wikipedia, the free encyclopedia

The Carltona doctrine (or principle) expresses the idea that, in United Kingdom law, the acts of government departmental officials are synonymous with the actions of the minister in charge of that department. The point was established in Carltona Ltd v. Commissioners of Works.[1]

Contents

[edit] The Judgment in Carltona

Faced with the requisition of their factory by the war-time government, the factory owners raised a judicial review action to challenge the legality of the requisition order. The order had been made under the auspices of the Defence (General) Regulations 1939, which authorised the Commissioners of Works to requisition such land as they deemed necessary in the national interest. The Regulations specified that the Commissioner's powers were exercisable by, inter alia the Minister of Works and Planning. The factory owners sought to argue that the requisition was invalid because the order had not in fact been signed by the minister, but by an official within the Ministry of Works and Planning. In rejecting this contention, the Master of the Rolls, Lord Greene, acknowledged the realities of government in the twentieth century :

" In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them...[therefore] The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of ministers by responsible officials of the department. Public business could not be carried on if that were not the case. "

This statement of the way government operates has only became more true in recent decades as increased state interventionism and juridifactory tendencies have produced a rapid growth in the use of delegated legislation. Clearly, confronted with this reality, it would have been preposterous for the Court to construe the wording of the Regulations so narrowly that only the Minister, in person, could exercise the powers. Thus Lord Greene explained that :

" Constitutionally, the decision of such an official is, of course, the decision of the minister. "

It should be emphasised that the essence of the Carltona doctrine therefore lies in the elision of the identity of departmental officials with the relevant Minister. It is emphatically not the case that the Minister has delegated his decision-making power to a subordinate and therefore the doctrine achieves consistency with the principle that Parliament's delagetees have, unless specifically provided by statute, no power to delegate (delegatus non potest delegare).

Lord Greene proceeded to reconcile this with the doctrine of parliamentary accountability on the basis that:

"It is he [the minister] who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them."

[edit] Scope of the Rule

Despite suggestions to the contrary by some academic commentators,[2] it seems that there is no restriction on the applicability of the doctrine on account of the nature of the power being wielded. In HMA v. Copeland[3] it was opined, by the highest criminal court in Scotland that :

" ...there is no obligation on the minister to exercise his powers personally even when those powers involve a serious invasion of the freedom or property rights of the subject."

However, in some instances Parliament has chosen to statutorily override this position by providing that the relevant minister must exercise the power in person.[4]

[edit] References

  1. ^ [1943] 2 All ER 560 (CA)
  2. ^ De Smith, Woolf and Jowell Judicial Review of Administrative Action (5th edn.) para. 6-114
  3. ^ 1988 SLT 249
  4. ^ Cf. s.13(5) Immigration Act 1971 (c.77)

[edit] See also

British Civil Service

[edit] External links

[edit] Academic Articles

Freedland 'The Rule Against Delegation and the Carltona Doctrine in an Agency Context' [1996] Public Law 19

Freedland 'Privatising Carltona: Part II of the Deregulation and Contracting Out Act 1994' [1995] Public Law 21

Lanham 'Delegation and the Alter Ego Principle' (1984) 100 Law Quarterly Review 587