Carltona v Commissioners of Works [1943] 2 All ER 560

Key point
  • Where a statute grants a power to the Secretary of State, the court will treat the decision of a departmental official as being one made by the Secretary of State without offending the rule against delegation
Facts
  • The appellant company (C) appealed against a decision dismissing a writ against the Commissioners of Works (W) for requisitioning C’s factory and reallocating its workforce
  • The Government was faced with a wartime shortage of accommodation and labour and under the Defence (General) Regulations 1939 reg.51(1) requisitioned a factory owned by C, a food manufacturer
  • C argued that the 1939 Regulations had been implemented not by the Minister as required, but an official within the Ministry of Works and Planning. They argued that as a holder of a delegated power, the Minister could not himself delegate its use (‘delegatus non potest delegare’)
Held (Court of Appeal)
  • Appeal dismissed, the action of the official was not a delegated act: it was an act of the Minister
Lord Greene MR
  • “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. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this Regulation meant that, in each case, the minister in person should direct his mind to the matter…”: p. 563
Commentary
  • The Carltona doctrine recognises that in practice no minister could possibly carry out all the legal duties required of him or her. It employs the constitutional fiction that civil servants have no identity separate from the minister; the actions of civil servants are, then, the actions of the minister. At the same time, it seems consistent with traditional constitutional theory: officials can exercise discretionary powers on behalf of the minister, because they are accountable to the minister; the minister is in turn accountable to Parliament
  • This is a major exception to the general rule in Barnard v National Dock Labour Board [1953] QB 18 that public power cannot be delegated
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