Forsey, R (on the application of) v The Northern Derbyshire Magistrates' Court

The Carltona principle applies to a ministerial power unless Parliament excludes it expressly or by necessary implication. A statutory provision may also create additional routes of delegated authority without excluding devolution to a suitably qualified departmental official acting as the minister’s alter ego.

Whether the principle is displaced requires careful examination of the statutory language and context. The sensitivity of the subject matter, the seriousness of the consequences, or the existence of transparency concerns will not ordinarily suffice. Under section 194(2) of the Trade Union and Labour Relations (Consolidation) Act 1992, proceedings could therefore be instituted by an authorised departmental official acting under the Carltona principle.

The claimant, a director of West Coast Capital (USC) Ltd, was prosecuted under section 194 of the Trade Union and Labour Relations (Consolidation) Act 1992 for an alleged failure to notify the Secretary of State of proposed collective redundancies.

The proceedings were instituted by postal requisition signed by a senior departmental lawyer. He stated that he had neither the Secretary of State’s consent nor express authorisation, but acted under the Carltona principle. The magistrates’ court rejected the claimant’s preliminary challenge to the validity of the proceedings. The judicial review concerned whether section 194(2) excluded that principle.

1. The claim was dismissed. The proceedings had been instituted lawfully, and there was no obstacle to their continuing in the magistrates’ court.
2. The Carltona principle is an ordinary inference of parliamentary intention. It permits ministerial functions to be exercised by suitably qualified departmental officials as the minister’s alter ego. It may be displaced by express words or by necessary implication from the statutory language and context, but there is no rule that the court must identify an especially compelling reason before examining the statute.
3. Section 194(2) did not expressly require the Secretary of State to act personally. Its wording created additional categories of persons who could institute proceedings: persons acting with the Secretary of State’s consent and officers authorised by special or general directions. The disjunctive structure did not exclude the separate operation of Carltona devolution.
4. The sensitive nature of industrial-relations legislation, the seriousness of criminal proceedings, the Secretary of State’s power under section 197, and alleged concerns about transparency did not establish the necessary implication. The postal requisition identified the charge, the official and the department, and the official was subject to the Code for Crown Prosecutors.
5. The authorities did not require a different result. Commissioners of Customs and Excise v Cure and Deeley Ltd concerned materially different drafting. Metropolitan Borough of Lewisham v Roberts demonstrated that devolution under Carltona and subsequent delegation could coexist. The existence of additional delegated routes therefore did not oust Carltona.
6. R (King) v Secretary of State for Justice, also known as R (Bourgass) v Secretary of State for Justice, was not authority that devolution and delegation could not coexist in one provision. It established only that statutory wording may exclude or limit Carltona.
7. Foskett J agreed. He observed that the additional words in section 194(2) were intended to permit the Secretary of State to confer the prosecuting power on persons who would not necessarily qualify under Carltona.

The claimant sought judicial review of a preliminary ruling by District Judge Davison in the Northern Derbyshire Magistrates’ Court on 27 April 2016. The district judge held that section 194(2) did not exclude the Carltona principle and refused to dismiss the charge as a nullity. The Divisional Court dismissed the judicial review claim.