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ations of those with respect to whom they are exercised. (A distinction between
legislative and executive powers cannot be very exactly made, but here we may
say with P Craig, Administrative Law (5th edn 2003), p 398, that legislation
˜signi¬es that the rule has a generality of application that distinguishes it from
a mere executive order™.)
Most executive powers of government derive from statute and are vested in
the ˜Secretary of State™, a designated minister, or (less often) in government
departments. When power is conferred upon a departmental minister it does
not necessarily follow that he or she must personally decide whether to exercise
the power. In practice the decision may be taken by a subordinate minister or,
very frequently, by o¬cials on the minister™s behalf.


Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 (CA)
Under the Defence (General) Regulations 1939, SR & O 1939 No 927, the
Commissioners of Works were authorised to requisition land if it appeared to
them to be necessary to do so in the national interest. The powers of the
Commissioners were by statute exercisable by the Minister of Works and
Planning. An o¬cial of the Ministry of Works and Planning signed on behalf of
the Commissioners of Works a notice to the owners of a factory stating that pos-
session would be taken of the factory premises. The owners argued unsuccess-
fully that the requisition was invalid because the Minister had not personally
directed his mind to the question.

Lord Greene MR: . . . In the administration of government in this country the functions which
are given to ministers (and constitutionally properly given to ministers because they are con-
stitutionally responsible) are functions so multifarious that no minister could ever personally
attend to them. To take the example of the present case no doubt there have been thou-
sands of requisitions in this country by individual ministries. It cannot be supposed that this
regulation meant that, in each case, the minister in person should direct his mind to the
matter. 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. The minister is responsible. It is
462 British Government and the Constitution


he who must answer before Parliament for anything that his officials have done under his
authority, and, if for an important matter he selected an official of such junior standing that
he could not be expected competently to perform the work, the minister would have to
answer for that in Parliament. The whole system of departmental organisation and admin-
istration is based on the view that ministers, being responsible to Parliament, will see that
important duties are committed to experienced officials. If they do not do that, Parliament
is the place where complaint must be made against them.


See further Freedland, ˜The rule against delegation and the Carltona doctrine in
an agency context™ [1996] PL 19; and note the observations of Lord Diplock in
Bushell v Secretary of State for the Environment [1981] AC 75, 95.
Acts properly done by departmental o¬cials on the minister™s behalf are in
law considered to be the acts of the minister himself. (See also Re Golden
Chemical Products Ltd [1976] Ch 300.) It has been conjectured that certain
powers a¬ecting personal liberty, such as deportation or the extradition of a
fugitive o¬ender, must be exercised by the minister personally. (See S de Smith,
Lord Woolf and J Jowell, Judicial Review of Administrative Action (5th edn
1995), para 6“114.) It may be too that a minister™s discretion to devolve deci-
sion-making to o¬cials is not unquali¬ed and would be open to challenge on
the ground of irrationality if, say, the designated o¬cial were of wholly inap-
propriate standing or quali¬cation: cf R v Secretary of State for the Home
Department, ex p Oladehinde [1991] 1 AC 254, 282, 284, 303; R v Secretary of
State for the Home Department, ex p Doody [1994] 1 AC 531, 566.
Exceptionally, statute may require that a power entrusted to a minister of the
Crown is to be exercised by the minister personally. There are provisions to this
e¬ect, for instance, in the Intelligence Services Act 1994, section 6(1) and the
Regulation of Investigatory Powers Act 2000, sections 7(1), 8(6). By convention
certain powers, which perhaps could lawfully be exercised by o¬cials on behalf
of ministers, are exercised by ministers in person “ for example, the making of
deportation orders. (See HC Deb vol 271, col 514 W, 13 February 1996; HC Deb
vol 365, col 489 W, 26 March 2001. As to the preliminary decision to deport cf
Oladehinde above at 303.)
The executive powers of government are many and of great variety. They
include powers to grant licences, authorise certain kinds of business, make
appointments to public o¬ces, remove or deport (certain classes of) persons
from the United Kingdom, approve by-laws of public bodies, make compulsory
purchase orders, give directions, require information and award contracts,
loans and subsidies. Under various ˜default™ powers, ministers may take over the
functions of other public authorities.
Powers conferred upon ministers will involve a greater or lesser degree of
discretion as to their exercise. The nature and limits of the discretion must be
looked for in the empowering Act, which may qualify the minister™s discretion
in a number of ways. In particular it may appear that the minister (i) may
463 The powers of government


exercise the power only if a certain state of a¬airs exists, or if he believes it to
exist; (ii) must consult or receive representations from certain persons (or even
obtain another™s consent) before exercising the power; (iii) must have regard to
speci¬ed factors in deciding whether, or how, to exercise the power; (iv) may
exercise the power only for speci¬ed purposes. An example is section 7 of the
Industrial Development Act 1982, which confers a discretionary power
(˜the Secretary of State may . . . ™) quali¬ed by a number of conditions which
impose duties upon the Minister, while leaving considerable scope for his sub-
jective judgement. The section reads as follows:


Selective financial assistance for industry in assisted areas
7.(1) For the purposes set out in the following provisions of this section the Secretary
of State may, with the consent of the Treasury, provide financial assistance where, in his
opinion “

(a) the financial assistance is likely to provide, maintain or safeguard employment in any
part of the assisted areas; and
(b) the undertakings for which the assistance is provided are or will be wholly or mainly in
the assisted areas.

(2) The purposes mentioned in subsection (1) above are “

(a) to promote the development or modernisation of an industry;
(b) to promote the efficiency of an industry;
(c) to create, expand or sustain productive capacity in an industry, or in undertakings in an
industry;
(d) to promote the reconstruction, reorganisation or conversion of an industry or of under-
takings in an industry;
(e) to encourage the growth of, or the proper distribution of undertakings in, an industry;
(f) to encourage arrangements for ensuring that any contraction of an industry proceeds in
an orderly way.

(3) Subject to the following provisions of this section, financial assistance under this
section may be given on any terms or conditions, and by any description of investment or
lending or guarantee, or by making grants, and may, in particular, be “

(a) investment by acquisition of loan or share capital in any company . . .
(b) investment by the acquisition of any undertaking or of any assets,
(c) a loan . . .
(d) any form of insurance or guarantee to meet any contingency. . . .

(4) Financial assistance shall not be given under this section in the way described in
subsection (3)(a) above unless the Secretary of State is satisfied that it cannot, or cannot
appropriately, be so given in any other way; and the Secretary of State, in giving financial
assistance in the way so described, shall not acquire any shares or stock in a company
without the consent of that company.
464 British Government and the Constitution


(5) In this section ˜industry™, unless the context otherwise requires, includes any descrip-
tion of commercial activity, and references to an industry include references to any section
of an industry.
(6) In this section ˜the assisted areas™ means the development areas, the intermediate
areas and Northern Ireland.


A requirement to ˜have regard to™ speci¬ed factors (which we have already
met in relation to delegated legislation) appears, for example, in section 11 of
the Countryside Act 1968:


In the exercise of their functions relating to land under any enactment every Minister, gov-
ernment department and public body shall have regard to the desirability of conserving the
natural beauty and amenity of the countryside.


This is a rather weak kind of limitation upon a minister™s power, for it leaves
him or her free to have regard, and give greater weight, to other considerations
in reaching a decision.
Exceptionally a statute may specify matters to which a minister exercising a
power is not to have regard (eg, the Immigration and Asylum Act 1999, s 97(2)).
Often a minister™s power may appear to be virtually unfettered, for example,
if the minister is authorised to act ˜if it appears to him to be desirable in
the public interest™ that he should do so, or simply ˜if he thinks ¬t™. But even
in these cases the minister must exercise his or her discretion in accordance with
the policy or objectives of the Act: see Attorney-General for Canada v Hallet &
Carey Ltd [1952] AC 427, 450; Pad¬eld v Minister of Agriculture, Fisheries and
Food [1968] AC 997.
In using discretionary power a minister must observe not only statutory con-
straints but also the principles of administrative law developed by the courts in
exercising judicial review. (See chapter 10.)


(i) Prerogative powers
Some executive powers depend not on statute but on the prerogative. When the
government “ or the responsible minister “ grants a royal pardon (through sub-
mission of advice to the Sovereign), terminates a prosecution by entering a nolle
prosequi, convenes a naval board of inquiry or sends armed forces to quell a dis-
turbance in a British city or a distant colony, it exercises a prerogative of the
Crown (those prerogative powers which remain exercisable only by the
monarch were considered in the previous chapter: here we are concerned with
ministerial exercises of prerogative powers).
The principal prerogative powers exercised by ministers were identi¬ed
in a report of the Public Administration Committee of the House of
Commons.
465 The powers of government


Select Committee on Public Administration, Fourth Report: Taming
the Prerogative, HC 422 of 2003“04, para 9
The principal royal prerogative, or Ministerial executive, powers exercised by Ministers
include the following.

a) The making and ratification of treaties.
b) The conduct of diplomacy, including the recognition of states, the relations (if any)
between the United Kingdom and particular Governments, and the appointment of
ambassadors and High Commissioners.
c) The governance of British overseas territories.
d) The deployment and use of the armed forces overseas, including involvement in armed
conflict, or the declaration of war. (The Royal Navy is still maintained by virtue of the
prerogative; the Army and the RAF are maintained under statute.)
e) The use of the armed forces within the United Kingdom to maintain the peace in support
of the police.
f) The Prime Minister™s ability to appoint and remove Ministers, recommend dissolutions,
peerages, and honours (save for the four Orders within The Queen™s own gift) . . .
g) Recommendations for honours by the Foreign and Commonwealth Secretary and the
Defence Secretary.
h) The organisation of the civil service.
i) The grant and revocation of passports.
j) The grant of pardons (subject to recommendations by the Criminal Cases Review
Commission) and the Attorney-General™s power to stop prosecutions.

To this list of powers there may be added, the distribution (by the Prime
Minister) of functions between government departments, the appointment of
o¬cial advisers and the management of the government™s business in the
Cabinet and its committees and through a variety of ad hoc arrangements.
Foreign relations (including the making of treaties and the declaration of
war) are conducted under the prerogative. In 1982 while negotiations were
taking place for a settlement of the Falklands con¬‚ict, the Leader of the
Opposition urged that ˜the House of Commons has the right to make a judge-
ment on this matter before any decision is taken by the government that would
enlarge the con¬‚ict™. Refusing to accede to this demand, the Prime Minister said,
˜it is an inherent jurisdiction of the government to negotiate and to reach deci-
sions. Afterwards, the House of Commons can pass judgment on the govern-
ment.™ (HC Deb vol 23, cols 597“8, 11 May 1982.) There was no explicit
parliamentary authorisation for the subsequent military engagement. Again,
the Government did not seek parliamentary authority for the commitment of
armed forces to military operations in Yugoslavia in 1999 or in Afghanistan in
2001. On the other hand, the Government sought (and obtained) the approval
of the House of Commons before going to war in Iraq in 2003. Whether this has
created a precedent, politically binding on future governments, remains to be
seen. In a powerful report the House of Lords Select Committee on the
466 British Government and the Constitution


Constitution recommended in 2006 that Parliament™s role in deciding to deploy
Britain™s armed forces abroad be strengthened and formalised, and that the
Government should not in the future be able to rely solely on the prerogative as
it had in the past.


House of Lords Select Committee on the Constitution, Fourth Report:
Waging War, HL 236 of 2005“06, paras 100“10
The majority of our witnesses agreed that it is anachronistic, in a parliamentary democracy, to
deny Parliament the right to pass judgement on proposals to use military force in pursuit of
policy, although there was no consensus on the best means to bring that about. Underlying
this sentiment is an anxiety to ensure, so far as is possible, that the action is not only legal
but legitimate and is seen to command the support of the nation as a whole. The contrary
argument “ for the retention of the status quo “ had two main themes. First, that any alterna-
tive would constrain the Government of the day™s freedom of action (both in terms of timing
and of the objectives) that alone made it possible vigorously to pursue the national interest;
and, secondly, that change would bring with it the politicisation of military decision making.
Coupled with the second concern was a fear that political controversy surrounding a proposed
deployment would sap the morale of the forces deployed and jeopardise their security.
Although there have been exceptions, such as emergencies, recent history shows that the
processes leading up to deployments are generally protracted, allowing plenty of time not only
to evaluate and plan for the action but to obtain parliamentary support. The fact that it might
be inconvenient for the Government to seek this support is hardly a justification for denying
it. The Government™s preparations have also been conducted under full media coverage, ren-
dering the arguments about security and secrecy more theoretical than real. The Government
also argues that it is in any case accountable to Parliament; but it seems to us that if substance
is to be given to the glib clich© that ˜Parliament can decide™ then significant adjustment needs
to be made to the processes that are employed to enable it to do so . . .
Our conclusion is that the exercise of the Royal prerogative by the Government to deploy
armed force overseas is outdated and should not be allowed to continue as the basis for
legitimate war-making in our 21st century democracy. Parliament™s ability to challenge the
executive must be protected and strengthened. There is a need to set out more precisely the
extent of the Government™s deployment powers, and the role Parliament can “ and should “
play in their exercise . . .
In that spirit, we recommend that there should be a parliamentary convention determin-
ing the role Parliament should play in making decisions to deploy force or forces outside the
United Kingdom to war, intervention in an existing conflict or to environments where there
is a risk that the forces will be engaged in conflict . . .
While not seeking to be prescriptive, we recommend that the convention should encom-
pass the following characteristics:

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