Carltona revisited: accountability and the devolution of statutory powers.

• Author: Chaplin, Ann
• Position: Canada

The Carltona doctrine allows persons who are not the named recipients of a statutory discretion to exercise that power for and on behalf of the person named in the statute. The statute says "X may do the following" and "Y" does it instead--and the courts accept it. However, there are limits to the principle. It does not apply to just any statutory power. From inside an increasingly complex government machine, the questions that arise are: "Who, exactly, can act for a statute-empowered minister?" and "To which other recipients of statutory powers does the doctrine apply?" As demonstrated in the seminal Henry Molot paper, published in 1994 in this Review, answering these questions involves a consideration of the basis for the doctrine. Its traditional foundations have included: ministerial responsibility to Parliament, institutional hierarchy and control, legislative intent, the presumption of validity and the distinction between acting as the alter ego of another and delegation. Government organizations are now much more diverse and complicated than they were when Carltona was decided. That context, together with the advent of the "accountability" culture in government, suggests that a new look at the doctrine and its sources may be warranted. This paper argues that the "modern" concepts of control and accountability have actually been, for many years, key factors in deciding when statutory powers may be exercised by persons not named in the statute. This insight may lead to a new way of determining when and to whom the doctrine should apply.

La doctrine enoncee dans l'affaire Carltona permet a des personnes ne jouissant pas d'un pouvoir discretionnaire confere par la loi d'agir au nom une personne dument autorisee. La loi dispose que << X peut faire ce qui suit >>, << Y >> agit a sa place, et les tribunaux l'acceptent. Il y a toute-fois des limites a ce principe; il ne s'applique pas sans egard au pouvoir confere. Dans une structure gouvernementale de plus en plus complexe, les questions suivantes se posent: <> de controle et de responsabilisation sont a vrai dire, et depuis longtemps, des facteurs cles pour decider quand des personnes non designees dans la loi peuvent exercer un pouvoir confere par la loi. On pourrait peut-etre ainsi degager de nouveaux parametres pour determiner a qui et quand devrait s'appliquer la doctrine.

Table of Contents I. INTRODUCTION II. WHAT IS THE THEORETICAL BASIS FOR THE CARLTONA DOCTRINE? III. CONTEXT A. "Before": Government Structures in the Carltona era B. "After": Modern Government Structures IV. DEVOLUTION DOCTRINE AND ACCOUNTABILITY A. The Exercise of Ministerial Powers 1. Is the Power Holder in Charge? 2. Is the Power-Holder Answerable? B. The Exercise of Non-Ministerial Powers 1. Is the Power-Holder in Charge? 2. Is the Power-Holder Answerable? V. CONCLUSION: A SUGGESTED FRAMEWORK FOR APPLYING DEVOLUTION THEORY I. INTRODUCTION

The Carltona doctrine, arguably the most popular judge-made rule in any Westminster-style government, represents the pinnacle of judicial accommodation of administrative necessity. (1) It allows persons who are not the named recipients of a statutory discretion to exercise that power for and on behalf of the person named in the statute. This is done without any express statutory authority, and without the Legislature having recognized a power to delegate. The statute says "X may do the following" and "Y" does it instead--and the courts accept it. If the doctrine was being developed for the first time now, instead of in the middle of the last century, it might attract more media attention than any other aspect of administrative law.

Why is such a remarkable degree of flexibility necessary? Legislatures (or more specifically legislative drafters) tend to follow the rules of grammar and give their statutory sentences a subject. Furthermore, even before the word "accountability" was given such prominence as a tool of governance, Parliaments needed to name the person who would be held responsible for the exercise of an authority conferred by a statute. If a mistake is made, if the power goes unused or if it is exercised for reasons that Parliament did not intend, someone needs to be identified to answer questions.

So it is convenient for legislators to name just one person when conferring statutory authority. However, what is convenient for Parliament is often the exact opposite for the recipient of the power in question--usually because legislators seem to follow the same adage that guides many volunteer organizations: "if you want something done efficiently, give it to the busiest person to do." The most common recipients of statutory power were, traditionally, ministers of the Crown. They are a group that quite easily fulfills the definition of "busiest." And so, as Lord Greene M.R. wrote in 1943, "[i]n 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." (2)

Legislatures, therefore, have deliberately created a rule, "the Minister may do 'x,'" which is impossible to follow. This curious legislative practice seems particularly unreasonable when coupled with a quite ancient rule of statutory construction: delegatus non potest delegare, or "a delegate may not re-delegate." The classic statement of that doctrine (and its exceptions) was provided by John Willis, a Canadian author whose short article was cited all over the Commonwealth for the next forty years: "A discretion conferred by statute is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority...." (3)

However, as Professor Willis was quick to point out, "[t]he maxim does not state a rule of law; it is 'at most a rule of construction'" and a rule, he went on to say, which can "be negatived by any contrary indications found in the language, scope or object of the statute." (4) In the cases which followed Carltona, the contrary indication was often found, not in the text of the statute itself, but as being "implicit in the modern machinery of government." (5)

Still, the fact remains that the courts are reading into a statute words that are not there. The words in question, according to Professor Willis, are "or any person authorized by it." (6) That this is a significant interpretive step is illustrated by the discomfort some judges have shown in applying the concept. Lord Denning, for example, would have preferred every civil servant exercising a ministerial authority to use the words "I 'am directed by the Minister,'" thereby changing an implicit authorization into an explicit one. (7) And Lord Parker, while nonetheless finding an implicit authority to delegate, felt "grave difficulties in extending" the Carltona principle to a power conferred on a non-ministerial recipient--in that case the Commissioner of Metropolitan Police. (8) (As we shall see, Lord Parker's views have not been universally shared on this point.)

Some limits to the principle, therefore, are implied. The central, indeed almost daily, question for government lawyers is "what is the scope and extent of the doctrine's application?" From inside an increasingly complex government machine, this question usually takes two forms: "Who, exactly, can act for a statute-empowered minister?" and "To which other recipients of statutory powers does the doctrine apply?"

Both of these questions were the subject of a touchstone article in this area, Henry Molot's paper entitled "The Carltona Doctrine and the Recent Amendments to the Interpretation Act." (9) Not only has the Molot article been the standard text on the subject in this country ever since, it has formed the primary basis for a number of judicial pronouncements on the doctrine--notably the Newfoundland Court of Appeal's decision in R. v. NDT Ventures Ltd. (10) As the paper demonstrates, answering the two questions raised in the last paragraph involves a consideration of the basis for the doctrine. Over the years, several underlying theories have been identified by the cases, including: responsibility to Parliament, institutional hierarchy and control, legislative intent, the presumption of validity and the distinction between acting as the alter ego of another and delegation.

With the advent of the "accountability" culture in government, a new way of putting the question would be to ask how each proposed application of the doctrine will impact on the capacity to hold to account those responsible for the exercise of statutory power. This paper will attempt to pursue the question of the scope and application of the Carltona doctrine from this perspective.

2. WHAT IS THE THEORETICAL BASIS FOR THE CARLTONA DOCTRINE?

   In 1942, the firm of Carltona Ltd. owned a factory in Willesden, England. In the interests of the war effort, "[it] was decided as the result of discussions to close the factory ... thus setting free the accommodation which the factory was capable of giving and the labour which the factory was employing." (11) This decision was taken in the exercise of the power given by the Defence (General) Regulations to "a competent authority" to "take possession of any land." (12) A notice was accordingly issued to the owners of the factory, signed by a Mr. Morse, who was the assistant secretary of the Ministry of Works and Planning. It appears to have been signed "for and on behalf of the Commissioners of Works," but that part of the letter is not reproduced in the judgment.

   Mr. Morse was not a "competent authority" under the Regulations. That status was given only to the Commissioners of Works. However, since the Commissioners never met, their authority, by virtue of the Crown Lands Acts, 1841 and 1852, was exercised by the First Commissioner, who was the Minister of Works and Planning. The...