#16707 - Retention Of Discretion Problem Question Notes - Administrative Law

This presumption is based on the principle of Parliamentary sovereignty.

Following Barnard v National Dock Labour Board, it appears that the more important the function, the less willing the courts are to find statutory permission for delegation, so the stronger the presumption against delegation – “While an administrative function can often be delegated, a judicial function rarely can be. No judicial tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication.” On the facts, the local dock labour board’s power to suspend a man could not lawfully be delegated to the port manager.

The rule is subject to the statute. For e.g., s 16(1) Localism Act expressly permits delegation: “A Minister of the Crown may, to such extent and subject to such conditions as that Minister thinks fit, delegate to a permitted authority any of the Minister's eligible functions.”

Delegation may arise in various forms.

Decision-makers are not allowed to act under the dictation of another entity as that amounts to delegation: Lavender v Minister of Housing and Local Government

There is a fine line between seeking guidance and acting under dictation. In PQs, mention that courts will consider the reality of the decision-making process, rather than its form. R (New London College) v Home Secretary (2013). Facts: educational institutions had been conferred the power by HS to make certain judgments which affected one part of the application for student visas. Held: this was not delegation of HS’s powers under Immigration Rules to educational institutions. She had last word about leave to enter or remain; significant number of students who had been refused despite producing a CAS shows HS retained her discretion. Grant of CAS was strong but inconclusive factor for student’s application for leave to enter.

Cf. Lavender v Minister of Housing and Local Government (1970). Facts: Minister of Housing and Local Government practised a policy of withholding permission for gravel extraction ‘unless Minister for Agriculture is not opposed’. Such a policy was not allowed in the statute. Held: Minister for Agriculture’s role was decisive, he had been delegated the effective decision on any appeal where he objects.

Another corollary: rule against rubberstamping.

In the PQs, rubberstamping can be inferred from the facts – frequency of decision, decision-maker seeking input from others or not, etc.

The anti-sub-delegation principle is subject to a very large exception.

Carltona Ltd v Commissioners of Works (1943): “In the administration of government in this country the functions which are given to ministers…are functions so multifarious that no minister could ever personally attend to them... 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. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he 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 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.

There are two ways of reconciling the anti-sub-delegation principle with the Carltona principle:

1. No delegation at all. Oladehinde (1991): “The civil servant acts not as the delegate, but as the alter ego, of the Secretary of State”. “Devolution may be a better word than delegation”. Bourgass (2015): “a decision made on behalf of a minster by one of his officials is constitutionally the decision of the minister himself”.

2. Lord Diplock in Bushell v SS for the Environment: discretion in making administrative decisions is conferred upon a Minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which…he is the political head”. Supported by Freedland.

Note that the Carltona doctrine only applies to delegation of powers from ministers. If not, Carltona won’t apply.

Officials within department of Minister

The Carltona principle obviously applies to officials within the department of which the Minister is the head.

Seniority

Under the doctrine, only delegation to officials of suitable seniority is allowed: R v Home Secretary, ex p Oladehinde. What constitutes suitable seniority depends on the nature of the power in question: DPP v Haw. Any delegation must be to someone properly qualified to make the judgment: Castle v DPP. NB. This requirement of officials with experience is clear from Lord Greene MR’s remarks in Carltona as well.

Contrary Parliamentary Intention

The Carltona doctrine will not apply if there is evidence of contrary Parliamentary intention. Such intention may appear from the statute. In Bourgass, the prison governor and his officials acted under Rule 45(2) of the Prison Rules 1999 – a prisoner shall not be placed in solitary for more than 72 hours “without the Secretary of State for Justice’s approval – but this was unlawful because, inter alia, the scheme of the Prison Rules show that it was Parliament’s intention that only the Minister can approve solitary confinement exceeding 72 hours.

Executive agencies

It is possible for the Carltona principle to apply to executive agencies. No hard-and-fast rule. The courts will look at the relationship between the agency and the Minister to see if there is a sufficiently close link, such that the Minister can still be held constitutionally accountable to Parliament for the agency’s actions: R v Social Services Secretary, ex p Sherwin. On the facts, the Benefits Agency, an executive agency of the Department of Social Security, could be delegated power vested in the Minister to temporarily suspend welfare benefits. Crucially, the ‘framework document’ set out the relationship between the Agency and the Department, and it specified that the Agency was to act in accordance with directions and policy guidance issued by the Minister and that Ministers remain accountable to Parliament for the full range of their responsibilities.

By contrast, in Bourgass, the Carltona doctrine did not apply to prison governors because, on the facts, the court found that they were the holders of an independent statutory office, based on the 1952 Act and the Prison rules. Their powers and that of the Home Secretary were distinctly demarcated. Some powers were exercised by them independently. (NB. The court distinguished Sherwin).

Non-ministerial powers

Possible for Carltona doctrine to apply to exercise of non-ministerial powers; for e.g., in DPP v Haw, lawful for MPC to allow another office to exercise his power to attach conditions to a protest near Parliament.

The touchstone is DPP v Haw (2008): Where statutory powers are conferred on an officer who is himself the creation of statute, whether that officer has the power to delegate must depend upon the interpretation of the relevant statute or statutes. Where the responsibilities of the office created by statute are such that delegation is inevitable, there will be an implied power to delegate. In such circumstances there will be a presumption, where additional statutory powers and duties are conferred, that there is a power to delegate unless the conferring statute, expressly or by implication, provides to the contrary.

R (Chief Constable of West Midlands Police) v Birmingham Justices: The constitutional logic underpinning Carltona is that Ministers are legally and politically responsible for those who are allowed to exercise power on their behalf. The court emphasised this point, indicating that its willingness to hold a Chief Constable’s power to apply for an antisocial behaviour order to be delegable depended, inter alia, on the fact that the Chief Constable would remain ultimately responsible for its exercise.

R (Hamill) v Chelmsford Justices: The degree to which powers may be delegated depends on the nature of the relevant power. It was right that the power at issue should be exercised by an officer of the rank of superintendent and above. This helps to ensure that those exercising very important powers in the name of the Chief Constable are not far removed from him in the police force’s chain of accountability.

If unsure

If novel scenario, just go back to first principles. Lord Greene MR’s Carltona principle appears to rest on two tenets: (1) constitutional accountability (to Parliament); (2) experience of officials to which power is delegated. Query if these are met on the facts.

In PQs, note a tension between disallowance of fettering of discretion and substantive LE. Suppose Minister had policy (which turned into a rule) of granting benefits, giving rise to substantive LE. Rules against fettering of discretion says cannot automatically grant...