Two ‘Carltona’ Cases: W.T. v. Minister for Justice, [2015] IESC 73; R. (Bourgass) v. Secretary of State for Justice, [2015] UKSC 54

As has often been said by administrative lawyers waiting at bus-stops, you wait ages for a major case on the exercise of ministerial powers by subordinates and then two come along at once.

There is an excellent review of the general principles in MacMenamin J.’s judgment for the Irish Supreme Court in W.T. v. Minister for Justice, [2015] IESC 73:

It is now well recognised in the law that each minister must both bear political responsibility to the Dáil, and legal responsibility in the courts, for actions taken by their own departments. In law, ministers are regarded as being one and the same as the government departments of which they are the political heads. Conversely, departmental officials act in the name of the minister. In making administrative decisions, therefore, discretion is conferred on a minister, not simply as an individual, but rather as the person who holds office as head of a government department, which collectively holds a high degree of collective corporate knowledge and experience, all of which is imputed to the political head of the department. Frequently a minister’s officials will prepare documents for consideration, consider objections, summarise memoranda, and outline a policy approach to be taken by the Minister as an integral part of the decision-making process. Part of this arrangement, identified as the eponymous Carltona principle, is that the functions entrusted to departmental officials are performed at an appropriate level of seniority, and within the scope of responsibility of their government department. No express act of delegation is necessary.

In law, the principle, thus expressed, is capable of being negatived or confined by express statutory provision to the contrary, or by necessary implication… In such cases, then, the test is whether it can be established that a statute clearly conveys that the Carltona principle is not to be recognised, or clearly implies such a conclusion. Although the doctrine was devised under the exigencies of administration in the United Kingdom in World War II, it is now seen as a judicial recognition of the complexity of the administration of modern states, where it would be impractical, that a minister, as political head of a department, could personally take every decision.

The Oireachtas can, by legislation, restrict or prohibit a Minister’s power to devolve a decision, and may require the Minister to exercise such decision-making power in person. This will require very clear statutory terminology; for example, words to the effect that a direction, or decision, should be made or performed by a Minister “and not by a person acting under his authority”. It follows that a court will be very slow to read into a statute any such implicit limitation; providing that the devolved power does not conflict with the duties of an official in the discharge of their specific functions, and that the decision in question is suitable to their grading and experience (at paras. 1, 3 and 5).

At issue here was a deportation order made by a departmental official, but MacMenamin J. was “not persuaded that the appellants have succeeded in demonstrating that the decision-making power in question has been negatived, confined, or restricted by express statutory provision, or by clear necessary implication” (at para. 39).

With more intriguing facts comes a case from the UK Supreme Court — R. (Bourgass) v. Secretary of State for Justice, [2015] UKSC 54 — concerning prisoners who were sent to solitary confinement. Authority to segregate prisoners is found in rule 45 of the Prison Rules, a statutory instrument:

“(1) Where it appears desirable, for the maintenance of good order or discipline or in his own interests, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the governor may arrange for the prisoner’s removal from association accordingly.

(2) A prisoner shall not be removed under this rule for a period of more than 72 hours without the authority of the Secretary of State and authority given under this paragraph shall be for a period not exceeding 14 days but it may be renewed from time to time for a like period.

(3) The governor may arrange at his discretion for a prisoner removed under this rule to resume association with other prisoners at any time …”

Further non-statutory guidance, issued by the Secretary of State, permitted operational managers within prisons to take segregation decisions. Given that the Rules referred specifically to “the authority of the Secretary of State”, was it lawful for senior prison officials to act in his stead?

The answer was a clear no, Lord Reed explained. Prison officials — whatever their seniority — are not departmental employees for whom a minister is constitutionally responsible:

…it is apparent that the arrangements governing the relationship between the Secretary of State and prison governors, established by the 1952 Act and the Rules, bear no resemblance to those governing the relationship between a minister and his departmental officials. Prison governors, whether the governor appointed under the 1952 Act or the wider class of “governors” referred to in the Rules, are the holders of an independent statutory office. The governor, not the Secretary of State, has custody of the prisoners held in the prison in question. He and his officers, unlike the Secretary of State, have the powers of constables. He and his officers exercise the powers over prisoners which are conferred on them by rules made by the Secretary of State, under the power conferred on him by section 47(1). The Secretary of State’s officers in turn ensure that those rules are complied with, in accordance with section 4(2). Under the Rules, the powers of governors and of the Secretary of State are distinctly demarcated. Some powers are exercised by governors independently. In relation to others, they are expressly required by law to act in accordance with, or have regard to, directions given by the Secretary of State: a requirement which demonstrates their constitutional separation from the Secretary of State and his departmental officials (at para. 64. See also at para. 50).

In the absence of clear lines of constitutional responsibility tying the Secretary of State to prison officials, application of the Carltona principle would plainly have been inappropriate.

Moreover, the “apparent rationale” of rule 45 was to protect prisoners by providing for external review of segregation decisions: “The governor can order segregation at his own hand for a maximum of 72 hours, but any longer period requires the authorisation of the Secretary of State – in practice, senior officials from outside the prison – in order to protect the prisoner against the risk of segregation for an unduly protracted period” (at para. 80). Why “apparent”? The Secretary of State put forward an alternative interpretation based partly on text and partly on legislative history, but Lord Reed ultimately was not persuaded (at para. 86).

Given the common law’s well-known concern to protect personal liberty interests, his ultimate conclusion is unsurprising: “it can in my opinion be inferred that rule 45(2) is intended to provide a safeguard for the prisoner: a safeguard which can only be meaningful if the function created by rule 45(2) is performed by an official from outside the prison” (at para. 88). The only surprise is that, given the recent resurgence of interest in common law constitutionalism on the UK Supreme Court, liberty interests did not play a more prominent role in Lord Reed’s reasoning.

The prisoners also won on a procedural fairness point, which gave Lord Reed the opportunity to make a sweeping point about the strict requirements of good administration where deprivations of liberty have occurred or are to occur:

A prisoner’s right to make representations is largely valueless unless he knows the substance of the case being advanced in sufficient detail to enable him to respond. He must therefore normally be informed of the substance of the matters on the basis of which the authority of the Secretary of State is sought. That will not normally require the disclosure of the primary evidence on which the governor’s concerns are based: as I have explained, the Secretary of State is not determining what may or may not have happened, but is taking an operational decision concerning the management of risk. It is however important to understand that what is required is genuine and meaningful disclosure of the reasons why authorisation is sought. The reasons for continued segregation which were provided by the prison staff involved in the present cases gave, at best, only the most general idea of the nature of their concerns, and of why those concerns were held. More could and should have been said – and was said, in the witness statements filed in these proceedings – without endangering the legitimate interests which the prison authorities were concerned to protect. The imposition of prolonged periods of solitary confinement on the basis of what are, in substance, secret and unchallengeable allegations is, or should be, unacceptable (at para. 100, emphasis added).

For more on Bourgass, see Mark Elliott’s take.

This content has been updated on August 13, 2015 at 16:59.