David Lock QC examines the consequences for government of the decision in R v Adams  UKSC 19 released by the Supreme Court on 13 May 2020.
The Carltona doctrine provides that a power in a statute which is required to be exercised by a Secretary of State may be exercised on behalf of the Secretary of State by a duly authorised official in the Secretary of State’s department. However the circumstances in which that doctrine can apply may need to be rethought in the light of a significant judgment handed down by the Supreme Court today in R v Adams  UKSC 19. That rethink may lead to a significant number of government decisions taken by officials being challenged as having no legal effect, although the effect of such challenges is difficult to predict.
Although a statute might say that a statutory power can only be exercised if the Secretary of State is satisfied in relation to a specific matter, civil servants to make countless decisions on matters in the name of Secretary of State without the personal opinion of the Secretary of State ever being sought. This “special rule”, as described in Wade and Forsyth on Administrative Law at p266, derives from case of Carltona v Commissioners of Works  2 All ER 560 where Lord Greene MR said that “powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department”: p563.
However, legislation rarely specifically provides that it is lawful for officials to exercise this type of discretionary decision making on behalf of the Secretary of State without seeking the approval of the minister in person. There is, as Wade and Forsyth on Administrative Law (11th Edition) explain no “delegation” of decision making responsibility to officials in such cases. Instead, officials are presumed to have authority to act in the name of the minister. Hence, “Legally and constitutionally, the act of the official is the act of the minister, without any need for specific authorisation in advance or ratification afterwards”: see R (Oladehinde) v Secretary of State for the Home Department  1 AC 254.
There has, perhaps, been a general understanding in government that officials have presumed authority to act in the place of a Minister unless it is clear from the wording of the statute that a power can only be exercised after the Secretary of State (or possibly a junior Minister) has personally considered the matter in question and made a relevant decision. If that approach existed, it may need reconsideration following R v Adams  UKSC 19. In a unanimous judgment given by Lord Kerr, the Supreme Court quashed convictions of the former leader of Sinn Fein, Gerry Adams, who was convicted of unlawfully escaping from internment in Northern Ireland in 1974 and 1975. The basis for the appeal was that his convictions should be quashed because the Interim Custody Order (“ICO”) under which he was imprisoned was never personally considered by the Secretary of State, and thus he was never lawfully imprisoned, and so could not be convicted of attempting to escape.
The narrow reading of the judgment is that, on the construction of the particular statutory scheme under article 4 of the Detention of Terrorists (Northern Ireland) Order 1972 [SI 1972/1632 (NI 15)], it was the intention of Parliament to require the Secretary of State personally to exercise the discretion to make an ICO. The internment provisions have long been repealed and so that issue of statutory construction is of historical interest only.
But the wider observations of the Court about the limits of the Carltona doctrine will have significance for other cases and are thus important. Lord Kerr examined the limits of the Carltona doctrine and observed at §14 that “the seriousness of the consequences is a consideration to be taken into account in deciding whether a power must be exercised by the Minister personally”. Hence the more serious the consequences of the exercise of the power, the more Parliament is likely to have intended that the discretion should be solely exercisable by the Secretary of State. Conversely, the less serious the consequences of the exercise of the power, the more Parliament is likely to have intended that the discretion could be exercised by officials acting in the name of the Secretary of State.
Lord Kerr refused to accept that there was a presumption that the Carltona principle applied to a statute, but equally did not specifically rule that this was not the case. He said at §25 that “It is unnecessary for the purposes of the present appeal to reach a firm conclusion on the question whether it is now established that there is a presumption that Parliament should be taken to have intended that the Carltona principle should apply” but the overall thrust of this reasoning is clearly against such a principle.
Lord Kerr indicated at §26 that the following factors should be used too indicate whether the Carltona principle applied or not:
a) The framework of the legislation,
b) The language of pertinent provisions in the legislation, and
c) The “importance of the subject matter”, in other words, the gravity of the consequences flowing from the exercise of the power.
That analysis, so the Judge said, should be considered against the background that statutory power were generally exercised on a minister’s behalf by officials. However those tests are hugely subjective and, as they are exercised by a court ex post facto, must leave a measure of uncertainty for those advising Ministers or those challenging decisions taken on behlaf of Ministers. Something may, for example, appear monumentally important for an individual citizen or a company but, from the perspective of officials, may appear to be routine.
Lord Kerr said that the task was one of statutory construction, namely to consider the detailed wording of the statutory provisions in order to determine whether it was one of those (possibly rare and serious) cases where Parliament intended a power only to be exercised after the Minister had personally applied his or her mind to the matter in question.
Practical Consequences of the Adams judgment.
The Adams judgment may lead to a string of further cases where the Courts are required to work out whether a specific statutory regime permits the exercise of powers by anyone other than the Secretary of State (or possibly as per Oladehinde, junior ministers who are authorised to act on behalf of the Secretary of State and are answerable to Parliament for their decisions). If a particular statutory regime comes within that category, it will be one of the rare occasions where a decision is required to be taken by the Secretary of State personally. That means that a decision by an official will be a nullity and of no legal effect.
At the very least, this judgment is likely to lead to a great deal of head-scratching within Whitehall and some nervousness as to whether existing and well established practices are likely to be exposed if subject to judicial review challenge. It may well be that, after a string of further cases, the categories of cases where the Carltona doctrine does not apply are found to be extremely limited. But it does seem reasonably certain that the categories of such cases will have been expanded by the Adams judgment.