Castle v Crown Prosecution Service [2014] EWHC 587 

Key points

  • The Secretary of State can delegate his powers to enact subordinate legislation under the Carltona principle

Facts

  • The appellant drove his motorcycle on the M62 motorway in contravention of a speed limit of 50 mph imposed by the Highways Agency in a 2011 Traffic Regulation Order
  • The appellant challenged the enforceability of the alleged offence in the High Court
  • The Order had been signed by an official of the Highways Agency, ‘by the authority of the Secretary of State’.
  • The appellant argued, inter alia, that the the Secretary of State for Transport had no power to delegate his statutory authority under s14 Road Traffic Regulation Act 1984 to impose variable speed limits by means of an order

Issue

  • Did the Secretary of State have the power to make an order restricting the use of a road or imposing conditions upon the use of the road, and is he allowed to delegate such a legislative power?

Held (High Court)

  • Appeal dismissed, the order was lawfully made and the offence enforceable

Pitchford LJ

  • “In my judgment the Highways Agency, is the alter ego of the Department for Transport for the areas for which the Secretary of State accepts responsibility in Parliament, just as he does for the actions of civil servants housed under his departmental roof. It is plain to me that the Carltona principle applies with equal force to judgments made by the Highways Agency to manage traffic by imposing variable speed limits under the 1984 Act and the 2011 Order when conditions require, as it did to the Benefits Agency making decisions as to the proper payment of benefits.”: [24]
  • “It would, in my judgment, be completely unrealistic to think that the Secretary of State could give his personal attention to the traffic speed restriction orders needed to keep traffic on the motorways of England and Wales working as they need. Of course he must devolve the duty to make those orders to those properly qualified to make the judgment.”: [28]

Cranston J

  • Although the issue of democratic accountability is raised as the Secretary of State is unlikely to be aware of the details of this order and other similar orders, the orders are subject to prior consultation with the community and subsequent registration and publication by the Stationery Office as a statutory instrument; questions could be raised in Parliament and judicial review is always possible: [43]
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