The grounds of challenge 153
licence applicants of their entitlement to a proper hearing before the full committee."
The principles so far stated concerning the interpretation of enactments as forbidding the delegation of functions must however be put into proper context. Delegation is in fact a very widespread practice in our public
administration. This is possible for two reasons. First, the courts have The Hong central government departments. Second, statute has expressly authorised Kong
developed a special rule applicable to the delegation of functions within
extensive delegation in local government administration.
8
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As regards central government the leading decision is Carltona Ltd v ne secondary Works Comrs. The company challenged an order which purported to requisition its factory, on the ground that the power to requisition was vested by the statute in the First Commissioner of Works (ie the Minister) but the decision had actually been taken by an assistant secretary in the Ministry (ie a civil servant). The Court of Appeal rejected this argument, holding that so many functions were vested by statute in Ministers that it was inevitable that not all could be exercised personally. Lord Greene MR explained:
The duties imposed upon Ministers and the powers given to Ministers are normally exercised under the authority of the Ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the Minister.
Indeed, it is usual to say that the situation does not involve delegation at all; the civil servant takes the decision not as a delegate but as the alter ego of the Minister.
As regards local government, the Local Government Act 1972, s 101(1) expressly provides:
... a local authority may arrange for the discharge of any of their functions-
(a) by a committee, a sub-committee or an officer of the authority; or (b) by any other local authority.
Sub-section (2) expressly authorises committees to delegate to sub- committees and each to delegate to officers; subject in each case to any restrictions contained in the initial delegation of authority. Sub-section (6) contains important limits to these powers to delegate. It provides that ‘a local authority's functions with respect to levying, or issuing a precept for, a
smmtar miles um
apply.
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6 Compare the cinema licensing decisions of Ellis v Dubowski [1921] 3 KB 621 and Mills v LCC [1925] 1 KB 213; and note the Scottish decision: Young v Fife Regional Council 1986 SLT 331.
7 See Lord Brightman's comments in Birmingham City District Council v O [1983] 1 AC 578,
[1983] 1 All ER 497, HL.
8 [1943] 2 All ER 560, CA. See also, ReGolden Chemical Products Ltd [1976] Ch 300, [1976]2 All ER 543; and compare, R v Secretary of State for the Home Department, ex p Hickling and JH (a minor) [1986] 1 FLR 543, CA (delegation by Secretary of State to prison governor). 9 In some situations the draftsman may have worded statutory powers so as to exclude the Carltona principles. See eg Immigration Act 1971, ss 13(5), 15(4); and more recently, the Interception of Communications Act 1985, s 4(11). For a restrictive interpretation of the Carltona principle see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 60 ALJR 560 (Aust HC).