Delegation: when and how

Sophie Watson, Browne Jacobson

Public authorities have many discretionary powers. These powers can always be carried out by the public authorities personally, but in some cases, the exercise may be delegated to other authorities. Allowing other authorities to take over the function of power is often permitted but the question is often whether there needs to be an explicit power to delegate or whether an implied power to delegate exists. There is seen to be a big difference between central and local government in this respect.

Statute will often provide the answer as to whether a power must be performed personally by those to whom they have been given. But where the powers need not be performed personally, or where statute is silent on the issue, the presumption at central government level is that the public authority is able to appoint an agent through whom the authority can act, without any loss of control or direction. This is known as the ‘Carltona’ doctrine, derived from the case of Carltona Ltd v Commissioners of Works [1943] 2 All E.R. 560:

“the duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case.”

It would be impossible in practice for government ministers to exercise all their functions personally, and because of that impracticality, it cannot have been Parliament’s intention when conferring a function that it should be exercised in that way.

The case of General Legal Council ex parte Whitter v Frankson [2006] UKPC 42 states that “the general principle is that when a statute gives someone the right to invoke some legal procedure by giving a notice or taking some other formal step, he may either do so in person or authorise someone else to do it on his behalf.” The presumption is of practical importance for public authorities, and it can be relied on in most circumstances.

However the Carltona doctrine is not really an implied delegation of authority. Rather, if the statute confers a power on a minister, and it is then delegated to a civil servant of sufficient seniority, the principle of ministerial responsibility maintains that the minister is still responsible for the acts of the civil servant. The civil servant is treated as the minister’s alter ego, and therefore any decisions are seen as those of the minister too. In that sense, there is not really a delegation of power, but rather devolution of power.

For example, in the case of R v Secretary of State for Social Security Ex p. Sherwin (1996) 32 B.M.L.R. 1, the Benefits Agency exercised powers that had been conferred on the minister to suspend payment of income support, and the Divisional Court applied the Carltona principle stating that ministers were responsible for the decisions of officials within their departments as it was impossible for a minister to attend personally to all the functions given to him. Therefore the minister remained accountable to Parliament for the actions of the Benefits Agency. The same reasoning was applied in Castle v Crown Prosecution Service [2014] EWHC 587 (Admin), where it was held that the Highways Agency was able to exercise the power of the Secretary of State for Transport to make orders restricting traffic, as the power had been devolved to the Highways Agency on the basis that it was the Secretary of State’s alter ego and qualified to make relevant judgements.

By contrast, in the case of R (on the application of Bourgass) v Secretary of State for Justice [2015] UKSC 54, the Supreme Court held that a prison governor could not exercise a minister’s power as the minister lacked control, and therefore constitutional responsibility, for the governor. The Carltona principle could therefore not apply. The case suggested that the named authority and the subordinate must be ‘constitutionally indistinguishable’ for Carltona to apply.

Again, in deciding whether to act personally, or what degree of delegation is permissible, the test is to consider to what degree Parliament might reasonably have intended the power to be exercised personally when conferring the function.

It is important to note that a civil servant of one department cannot exercise delegated powers if those powers are derived from a minister in charge of another department. This is unless appropriate arrangements are put in place to ensure that the principles for the exercise of discretion and control continue to lie with the minister in whom the power vests. For example, it is not acceptable for the function of one minister to be exercised by a civil servant who is wholly under the control and direction of another minister, even if the exercise is ‘rubber-stamped’ by the first minister (R v Secretary of State for Trade, ex parte Chris International Foods Ltd (CO/1020/82) 1983 QBD). Where for administrative reasons it is necessary for a function vested in one department to be carried out by staff of another department, the safest course is to make a transfer of functions order under the Ministers of the Crown Act 1975. Although the Carltona principle is derived from ministerial responsibility, and is therefore rooted in central government, subsequent case law has shown that the doctrine is not limited to ministers and can be applied in any context where a public official or authority cannot reasonably be expected to exercise its functions without the intervention of, and a degree of delegation to, staff or other agents.

However, due to section 101 of the Local Government Act 1972, there is a strong argument that the Carltona principle does not apply to local authorities. Section 101 (and by reference section 9EA of the Local Government Act 2000) allows a local authority to arrange for its functions to be discharged by another authority. It also allows for functions to be discharged between local authorities jointly. The presumption being, where there is an explicit power to do something in legislation, that this overrides an implied power derived from case law. Therefore, unless a local authority requests another authority to discharge its functions with reliance on the relevant statute, it is in breach of its statutory functions and could be seen to be acting ultra vires.