Carltona Ltd v Commissioners of Works

Facts

Carltona Ltd, a company carrying on business in premises that were requisitioned during the Second World War, challenged the requisition. Under wartime emergency regulations the Commissioners of Works had power to take possession of land where this appeared necessary or expedient in the interests of public safety or the defence of the realm. The requisition notice was issued not by the Commissioners themselves but by an assistant secretary of the department, on their behalf. Carltona argued that the Commissioners had to exercise the power personally.

Issue

Whether a statutory power conferred on a minister or other named authority must be exercised personally by that authority, or may lawfully be exercised by an official of the department in the authority's name.

Held

Appeal dismissed. The requisition was valid; the power was lawfully exercised on behalf of the Commissioners by the departmental official.

Ratio

• Where a statute confers a function on a minister, it is presumed that the function may be exercised by an official of the minister's department on the minister's behalf, because the official's decision is, constitutionally, the decision of the minister, who is answerable to Parliament for it.
• The presumption rests on the practical impossibility of ministers personally taking all decisions their office requires, and it does not apply where the statute clearly requires personal exercise or the official has acted outside his authority.

The judgments

Key reasoning

• Modern government assigns ministers a very wide range of powers, so it would be absurd to suppose that Parliament intended each decision to be taken personally by the minister.
• The safeguard against misuse is not the identity of the person who signs but ministerial responsibility to Parliament for the acts of the department, which the minister cannot avoid by pointing to an official.
• The statute did not require personal decision-making, and the officer was shown to have acted within the authority of his department, so the notice was valid.

Where it fits in the module

The FHS delegation topic asks when a decision-maker may act through others, and Carltona is the foundation of the central-government answer: no formal delegation is needed, as the official is the minister's alter ego. It contrasts with the strict delegatus non potest delegare approach applied to local authorities and statutory bodies. The principle was applied in R v Secretary of State for the Home Department, ex p Oladehinde [1991] 1 AC 254 and limited in R (Bourgass) v Secretary of State for Justice [2015] UKSC 54, where the Supreme Court held it did not extend to a decision that the statutory scheme required to be taken by someone more senior or in a particular capacity. Tutorial questions turn on whether ministerial responsibility to Parliament remains a credible safeguard in modern departments and on the reach of the principle to executive agencies.

Criticisms

• Ministerial responsibility to Parliament is a weak control on routine decisions by junior officials, so the constitutional justification does little real work in modern departments.
• The principle lets officials exercise significant discretion over individual liberty and property, such as detention or removal decisions, without legislative scrutiny of who actually takes the decision.
• It is difficult to apply to Next Steps agencies and bodies outside the department, where the link between minister and decision-maker is thin and ministerial accountability is attenuated.
• The presumption of implied authority is vague, because it gives courts little guidance on when the statute requires personal exercise and invites inconsistent results.