Carltona doctrine
Encyclopedia
The Carltona doctrine 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.
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 20th century:
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:
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:
that:
However, in some instances Parliament has chosen to statutorily override this position by providing that the relevant minister must exercise the power in person.
The Supreme Court of Ireland has confirmed that the Carltona doctrine applies to its fullest extent to the Irish civil service also- see Devanney v Shields [1998] 2 I.R .230.
Minister (government)
A minister is a politician who holds significant public office in a national or regional government. Senior ministers are members of the cabinet....
in charge of that department. The point was established in Carltona Ltd v. Commissioners of Works.
The judgment in Carltona
Faced with the requisition of their factory by the war-time government, the factory owners raised a judicial reviewJudicial review in English Law
Judicial review is a procedure in English administrative law by which the courts in England and Wales supervise the exercise of public power on the application of an individual...
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
Master of the Rolls
The Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the second most senior judge in England and Wales, after the Lord Chief Justice. The Master of the Rolls is the presiding officer of the Civil Division of the Court of Appeal...
, Lord Greene, acknowledged the realities of government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
in the 20th century:
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
Delegated legislation
In the United Kingdom, delegated legislation is legislation or law that is passed otherwise than in an Act of Parliament . Instead, an enabling Act confers a power to make delegated legislation on a Government Minister or another person or body...
. 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:
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
Delegata potestas non potest delegari
In constitutional and administrative law, the principle delegata potestas non potest delegari states that ‘no delegated powers can be further delegated’. Alternatively, it can be stated delegatus non potest delegare, ‘one to whom power is delegated cannot himself further delegate that power’...
).
Lord Greene proceeded to reconcile this with the doctrine of parliamentary accountability on the basis that:
Scope of the rule
Despite suggestions to the contrary by some academic commentators, 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 it was opined, by the highest criminal court in ScotlandHigh Court of Justiciary
The High Court of Justiciary is the supreme criminal court of Scotland.The High Court is both a court of first instance and a court of appeal. As a court of first instance, the High Court sits mainly in Parliament House, or in the former Sheriff Court building, in Edinburgh, but also sits from time...
that:
However, in some instances Parliament has chosen to statutorily override this position by providing that the relevant minister must exercise the power in person.
The Supreme Court of Ireland has confirmed that the Carltona doctrine applies to its fullest extent to the Irish civil service also- see Devanney v Shields [1998] 2 I.R .230.
External links
- UK Government departments - how they work - Official UK Government site
- The Civil Service explained - Official UK Government site
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