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Cite as: [2017] EWHC 1152 (QB), [2017] ICR 1161, [2017] WLR(D) 344

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Neutral Citation Number: [2017] EWHC 1152 (QB)
Case No: CO/3400/2016

IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
19/05/2017

B e f o r e :

LORD JUSTICE TREACY
and
MR JUSTICE FOSKETT

____________________

Between:
The Queen on the Application of David Michael Forsey
Claimant
- and -

The Northern Derbyshire Magistrates' Court
Defendant

____________________

Mr David Perry QC and Ms Katherine Hardcastle (instructed by RPC) for the Claimant
Mr Paul Ozin QC (instructed by The Secretary of State for Business, Innovation and Skills) for the Second Interested Party
Hearing date: 30 March 2017

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    LORD JUSTICE TREACY:

    Introduction

  1. This is a challenge by way of judicial review to the decision of District Judge Davison, sitting at the defendant court on 27 April 2016, not to stay the claimant's prosecution by the second interested party under the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act) for an offence contrary to s.194. That is an offence arising from an alleged failure by an employer to give notice to the Secretary of State of certain redundancies. The claimant seeks a quashing order and a declaration that the institution of criminal proceedings against him was a nullity.
  2. The core issue in the case is whether the Secretary of State may lawfully rely on the principle in Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 to institute criminal proceedings against the claimant who was alleged to have been guilty of the offence under s.194(3) as a director of the company concerned. The issue, therefore, is concerned with the true construction of s.194(2) of the Act and whether that true construction has the effect of excluding the 'Carltona principle' as it is called.
  3. The section provides:
  4. 194 – Offence of failure to notify.

    (1) An employer who fails to give notice to the Secretary of State in accordance with section 193 commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

    (2) Proceedings in England or Wales for such an offence shall be instituted only by or with the consent of the Secretary of State or by an officer authorised for that purpose by special or general directions of the Secretary of State.

    An officer so authorised may []

    prosecute or conduct proceedings for such an offence before a magistrates' court.

    (3) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

    (4) Where the affairs of a body corporate are managed by its members, subsection (3) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

  5. The claimant was prosecuted as a director of West Coast Capital (USC) Ltd, which entered into administration in January 2015, and whose 84 employees at a warehouse operated in Dundonald, Scotland were made redundant on 14 January 2015. It was alleged that the company committed an offence contrary to s.194 by failing to notify the Secretary of State in writing of a proposal to dismiss and make redundant 20 or more employees. The claimant is said also to be guilty on the basis that he had consented to, connived at, or neglected to prevent this failure.
  6. Proceedings were commenced by postal requisition, setting out the offence in the manner described above and signed by Ian Whittaker, a senior lawyer employed by the Secretary of State. The letter included the wording, "Charge authorised by: Ian Whittaker." It gave details to enable contact to be made with him.
  7. Solicitors acting for the claimant wrote to Mr Whittaker seeking clarification of the basis upon which proceedings had been brought in the light of the express words of s.194(2). Mr Whittaker replied, stating:
  8. "Authority to prosecute: I confirm that I neither received the consent of, nor authorisation from the Secretary of State to commence these proceedings. This is because by virtue of the Carltona principle, derived from Carltona Ltd v Commissioner of Works [1943] 2 All ER 560, I am the Secretary of State for these purposes."

    In the light of that response the claimant challenged the lawfulness of the proceedings by way of an application to the Magistrates' Court. The matter was heard by the district judge as a preliminary issue, over two days in March 2016. He handed down his ruling on 27 April 2016.

  9. His conclusion was that on a true construction of s.194(2), the Carltona principle applied and was not ousted by the words used in s.194(2). Accordingly, he rejected an application for the charge to be dismissed as a nullity.
  10. The terms of the Carltona principle and its effect were not controversial as between the parties. What was in issue was whether an analysis of s.194(2) led to the conclusion that it did not apply in this case. An authoritative account of the principle can be found, (including a citation from the original case), in R (King) v Secretary of State for Justice, also known as R (Bourgass) v Secretary of State for Justice, [2016] AC 384 at paragraphs 48 to 53. In brief, the functions given to ministers are so multifarious that no minister could ever personally attend to all of them. In those circumstances, the duties imposed upon ministers, and the powers given to them, are normally exercised under the authority of the minister by responsible officials of the department. Constitutionally, the decision of such an official is that of the minister. This is not a matter of agency or delegation to the official, but one of devolution to the official as the alter ego of the minister. For these purposes the official must be suitably qualified. It is not in issue that Mr Whittaker was so qualified.
  11. Claimant's Submissions

  12. Mr David Perry QC submitted that s.194(2) identified those who may lawfully institute proceedings in England and Wales by using a drafting technique which was inconsistent with the application of the Carltona principle. When the section is looked at in context, Parliament had expressed itself in terms which excluded the possibility of devolution to an official such as Mr Whittaker. The subsection should be read as dividing those entitled to initiate proceedings into three categories: (i) the Secretary of State personally; (ii) a person acting with the consent of the Secretary of State; or (iii) an officer authorised for that purpose by direction of the Secretary of State.
  13. It was contended that categories (ii) and (iii) represented persons specifically nominated by the Secretary of State. These would be examples of delegated, rather than devolved authority and thus would fall outside the Carltona principle. Mr Whittaker's letter had confirmed that he did not fall into either of these two latter categories. The fact that such categories existed was an indication that Parliament had not intended the Carltona principle to apply to s.194(2). The existence of a mechanism to enable those in categories (ii) and (iii) to issue proceedings, meant that the rationale for the Carltona principle did not apply.
  14. Mr Perry further submitted that the context in which the s.194 offence arose was important. It was in a part of the Act dealing with industrial relations, and in a chapter dealing with the procedures for handling redundancies. He submitted that those provisions represented a social and political settlement in a sensitive and controversial area of the law, namely that of industrial relations. Section 194(2) was a re-enactment of a provision which had originally been enacted in s.105 of the Employment Protection Act 1975. He reminded the court of the sensitivity of industrial relations legislation in the 1970s and submitted that that was a potential indicator that Parliament had intended the Secretary of State personally, or those specifically nominated by him to have the power of initiating proceedings, rather than some wider class under the Carltona principle.
  15. Mr Perry also made reference to the requisition letter process asserting that if the Carltona principle applied to it, it would represent a derogation from levels of scrutiny and transparency in the initiation of proceedings commented on by Devlin J in Price v Humphries [1958] 2 QB 353 at 358, a case where the issue of a summons would have been scrutinized by a Justice or Justice's clerk.
  16. He also placed reliance on Price v Humphries together with Commissioners of Customs and Excise v Cure and Deeley Ltd [1962] QB 340, as providing examples of drafting techniques, akin to those in the present case which led to the exclusion of the Carltona principle, and thus supported his case. He relied on the latter case as authority for the proposition that where Parliament has expressly delegated authority to prosecute it must be taken to have restricted the possibility of devolution under the Carltona principle. Moreover, observations by Sachs J in that case as to a narrow approach to be adopted in construing a taxation statute should be applied in relation to a criminal law statute.
  17. I note that the statutory provisions involved in the two cases cited above were the only examples which had been found of something akin to the formula used in s.194(2). The precise formula used in s.194(2) is not found in any other provision of the Act, or in any other legislation. The Act contains five offence creating provisions: three of them (ss. 45, 240 and 241) have no consent requirement, and s.251B contains a provision for the consent of the Director of Public Prosecutions. There are over 90 references to powers or duties of the Secretary of State within the Act, but depending on their nature or context they vary between those to which the Carltona principle does or does not apply.
  18. Mr Perry argued, however, that the purpose of the notification regime required by s.193 was to mitigate the effect of redundancies and to ensure that the necessary consultation process was properly documented. These provisions were important in mediating the respective interests of employers and employees in a redundancy situation. The fact that s.197 gave the Secretary of State power to vary s.193 requirements by statutory instrument through the affirmative procedure was a supportive illustration of Parliament's desire that the Secretary of State should play a central role in the operation of the scheme, and it shed light on the construction of s.194(2).
  19. It was further submitted that if the Carltona principle applied, it would carry the implication that the official concerned could himself give consent to others or authorise them by special or general directions. Such a process was called the "double Carltona principle" in these proceedings. That would be far too broad a result and would run counter to the provisions of s.194(2) which were designed to restrict those who could initiate proceedings. Reliance was placed on Anderson v Hamlin [1890] LR 25 QBD 221 as demonstrating that the power to prosecute was limited to a person or persons, no other person could initiate proceedings. Moreover, there were no authorities which, correctly analysed, showed approval of the "double Carltona principle."
  20. In conclusion Mr Perry submitted that s.194(2) was a limiting provision designed to protect against politically or improperly motivated prosecutions in a sensitive area. On that basis alone, Parliament must have intended the decision to be that of the Secretary of State personally or made by other persons to whom he had expressly delegated the power to initiate proceedings. The existence of that power to delegate through categories 2 and 3 was not consistent with the Carltona principle. The possibility of delegation ensured both fairness and transparency, and such delegation might properly arise if there were perceived to be a conflict of interests between the roles of the Secretary of State as complainant and prosecutor. All those considerations militated against power being devolved to departmental officials, although no difficulty would arise in the case of such an official who had express consent or who was authorised as an officer by direction of the Secretary of State.
  21. Secretary of State's Submissions

  22. Mr Paul Ozin QC on behalf of the Secretary of State resisted those submissions. He contended that the matter was not to be determined by a consideration of the sensitivity or seriousness of the subject matter of the legislation. Rather, the court should be driven by an analysis of the statute. He submitted that there needed to be established sufficient material or facts as to exclude the Carltona principle. The principle reflects an ordinary inference of Parliamentary intention which arises unless negated by express statutory words or by context. It would have been easy to exclude the principle by express words as had occurred in other legislation; see for example s.71 of the Serious Organised Crime and Police Act 2005, which refers to "The Secretary of State for Business, Energy and Industrial Strategy acting personally". No such express words had been used in this case.
  23. In the absence of express words, the court should be slow to read into the statute an implied limitation of the Carltona principle, which would generally apply to most prerogative or statutory functions exercised by ministers arising from the nature of the ministerial responsibility. The principle will not readily be ousted by implication. In support of this, he drew attention to the citation by Lord Reed in King ...or Bourgass) at paragraph 49 citing Jenkins J in Lewisham Borough Council v Roberts [1949] 2 KB 608 at 629: "… acts done in exercise of those functions are equally acts of the minister, whether they are done by him personally, or through his departmental officials, as in practice, except in matters of the very first importance, they almost invariably would be done."
  24. Mr Ozin also referred to R v Secretary of State for the Home Department ex parte Oladehinde [1991] AC 254, where Woolf LJ in the Divisional Court stated at page 264H "The Carltona principle is therefore, in my view more correctly regarded as an implication which is read into a statute in the absence of any clear contrary indication by Parliament that the implication is not to apply." In addition, he referred to the recent decision of the Supreme Court of Ireland in WT & Ors v Minister for Justice and Equality and Ors [2015] IESC 73 at paragraph 5: "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 statue any such implicit limitation …".
  25. In this case, he argues, there was nothing to warrant the exclusion of the principle in the absence of express statutory provision or by necessary implication from the context of the legislation. The case was different from King (or Bourgass), where the principle was excluded after a consideration of the terms of the statute and its purpose. There the Supreme Court had held that the Secretary of State could not devolve his power to extend a governor's prison segregation decision to prison officials because the governor could not be regarded as a ministerial official since he held a distinct office. Further, the Secretary of State was intended by the legislation to provide an independent safeguard to decisions made by the governor. Another such decision was the Australian High Court's decision in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 CLR 24, where analysis of the statutory scheme compelled the conclusion that the minister was personally responsible for the exercise of a function unless he expressly delegated it.
  26. Insofar as reliance had been placed on Price v Humphries and Commissioners of Customs and Excise v Cure and Deeley Ltd, the wording used in each case was different to that employed in s.194(2). In Cure and Deeley the wording of the relevant section compelled the exclusion of the Carltona principle in a way that s.194(2) does not. Analysis of the statutory language used in Cure and Deeley clearly led to the conclusion that the Carltona principle was ousted, but was not of material assistance in the present case. The decision in Price and Humphries did not involve a consideration of the statutory language and its relationship to the Carltona principle.
  27. By way of contrast Mr Ozin relied on Mohammed and Parkes v Department of Work and Pensions [2012] EWHC 4220 (Admin). The case concerned whether a lawyer working in the Department had power under the Carltona principle to issue a certificate of sufficient evidence made under s.116(2)(a) of the Social Security Administration Act 1992. Although the language of the judgment speaks of "delegation" in the context of the Carltona principle, rather than "devolution" of the Secretary of State's power, it is clear that the court upheld the existence of the Carltona principle. Attention was drawn to that authority because notwithstanding that s.116(1) contained a provision relating to authority to prosecute akin to category (iii) in the present case, it did not serve to prevent the application of the Carltona principle to s.116(3)(a) concerning authority to issue a s.116(2)(a) certificate of sufficient evidence.
  28. Mr Ozin next relied on the proposition that there were authorities which showed that the "double Carltona" principle was permitted. He cited Metropolitan Borough of Lewisham v Roberts, as well as Nelms v Roe [1971] WLR 4, O'Reilly v State Bank of Victoria Commissioners [1983] HCA 27, and DPP v Haw [2007] EWHC 1931 (Admin). Anderson v Hamlin was not relevant to this matter. It was simply beside the point and illustrated the principle that a delegate could not delegate further. Delegation of power as between minister and official was not an issue in the present case; the issue was one of devolution of power in accordance with Carltona.
  29. Mr Ozin, after submissions briefly contesting the contentions as to transparency of process and the relevance of s.197 of the Act, turned to s.194(2) itself. He disputed that the fact that a provision envisaged delegation of a power necessarily excluded devolution of power under the Carltona principle. He accepted that categories (ii) and (iii) as identified at paragraph 9 above, would represent examples of delegation. He submitted that category (i) involving institution of proceedings "by ... the Secretary of State" amounted to devolution under the Carltona principle to a person other than the Secretary of State personally.
  30. The purpose of the language used in s.194(2) was to give a range of flexibility so that persons outside the Secretary of State's Department could be nominated by means of categories (ii) and (iii) to initiate prosecutions. The mere fact that the Secretary of State could delegate, or contract out, authority to institute proceedings did not lead to the conclusion that the institution of proceedings "by… the Secretary of State" had to relate to him personally. No authorisation was required for a responsible qualified person such as Mr Whittaker. Authorisation is only required in relation to categories (ii) and (iii) because such authorisation does not arise by operation of the Carltona principle.
  31. Discussion and Conclusions

  32. Although both parties agreed that the Carltona principle can be excluded expressly by statue or by necessary implication, there was some debate about the correct approach. Based on the authorities cited at paragraphs 19 and 20 above, Mr Ozin initially urged that there would need to be a compelling reason to depart from the Carltona principle. He later put the matter in terms of there needing to be sufficient material or facts to enable departure from the principle. Mr Perry, on the other hand, urged that a less emphatic test be applied and that the focus should be on the terms of s.194(2) and its context.
  33. The language of s.194(2) does not contain any express exclusion of the Carltona principle, for example by using words which show that the decision is to be taken by the Secretary of State personally. Therefore the issue is whether there arises a necessary implication that the principle is excluded in this case. I consider that that requires a careful examination of the statutory language and its context, including a consideration of factors said to point towards exclusion of the principle. In my judgment, there is, at the very least, a starting point that the Carltona principle applies and that it requires displacement. The principle may be displaced by materials or considerations which lead to the conclusion that Parliament intended to exclude the principle.
  34. In Cure and Deeley Ltd the relevant provision was s.4 of the Customs and Excise Act 1952. Section 4 provides:
  35. 4.- Exercise of powers and performance of duties

    (1) Any act or thing required or authorised by or under any enactment to be done by the Commissioners or any of them may be done –(a) by any one or more of the Commissioners; or (b) if the Commissioners authorise, by a secretary or assistant secretary to the Commissioners; or (c) by any other person authorised generally in that behalf in writing by the Commissioners.

  36. That is not a provision which relates to the institution of prosecutions. It is concerned with the exercise of powers and performance of duties. The institution of proceedings is dealt with at s.281 of the Act.
  37. In that case a Mr Piper, who signed the relevant demand, was an official responsible for purchase tax recovery. Sachs J upheld a challenge to the validity of the demand issued on the basis that that it was not signed by a properly authorised person. Sub-section (a) relates to actions by one or more of the Commissioners, so that the Carltona principle cannot apply to that limb. Sub-section (b) relates to specific departmental officials, thereby excluding the more general Carltona principle. Sub-section (c) could not apply because necessary authorisation had not been given to Mr Piper. It seems to me that sub-sections (b) and (c) both oust the Carltona principle because they involve authorisation which is a form of delegation, inconsistent with the devolution imported by that principle.
  38. Accordingly, I do not consider that this case assists the claimant. The Carltona principle, although considered, was excluded by the statutory language, even in relation to sub-section (a), whose wording is materially different from that used in s.194(2). This was not a provision in any respect of which a proper construction admitted of Carltona devolution. Each of the provisions displaced the principle. In those circumstances, Cure and Deeley Ltd is not authority for the proposition that where a provision in part ousts the Carltona principle, that is inconsistent with the principle operating in any other part of the same provision.
  39. In Price v Humphries, the relevant provision was s.53 of the National Insurance Act 1946. Section 53 provided:
  40. (1) Proceedings for an offence under this Act shall not be instituted except by or with the consent of the Minister or by an Inspector or other officer authorised in that behalf by special or general directions of the Minister.

  41. The point in the case was nothing to do with the Carltona principle and there was no reference to Carltona at all. The present issue therefore simply did not arise, although there are similarities between the terms of s.53(1) and s.194(2). Price v Humphries provides no assistance on the point of statutory construction, but it was also relied on in contrasting transparency in the institution of proceedings. Devlin J in that case had pointed out that where summary proceedings were commenced by laying an information before, and the issuing of a summons by, a justice or a clerk to the justices, any necessary consent or authority must be proved at that point. A contrast was made with the institution of these proceedings which were by postal requisition.
  42. I do not consider that this point is sound. The postal requisition sent to the claimant clearly set out the charge and stated that Mr Whittaker had authorised that charge, providing relevant contact details, including identification of the department for which he worked. Mr Whittaker's subsequent reply to the querying of his authority could not have been clearer in indicating that he did not have the consent or authorisation of the Secretary of State, but was relying on the Carltona principle. In those circumstances, there was no lack of transparency, and indeed the taking of this preliminary point on construction illustrates that the transparency in the process was effective. A lawyer such as Mr Whittaker will be bound by the Code for Crown Prosecutors. The Secretary of State will be answerable to Parliament.
  43. It is also submitted that R (King or Bourgass) at [52] supported the proposition that if a section contained delegation provisions, that would militate against the inclusion of the Carltona principle within the same section. That appears to me be an over-reading of what Lord Reed JSC said at [52]:
  44. "It is also possible that the performance of statutory ministerial functions by officials, or by particular officials, may be inconsistent with the intention of Parliament as evinced by the relevant provisions. In such circumstances, the operation of the Carltona principle will be impliedly excluded or limited."

    The words which I have italicised in the passage quoted demonstrate the over statement. Clearly Lord Reed was saying no more than that the wording of a statutory provision may operate to exclude or limit the Carltona principle. This is not authority for the proposition that devolution and delegation cannot co-exist within the same provision.

  45. I next turn to consider the nature of the Act. It was not disputed that the Part IV, Chapter II of the Act mandated procedures designed to mitigate the effect of redundancies and to ensure that a required consultation process was properly adhered to. Again, it was not controversial that this was important legislation, mediating the respective interests of employers and employees in an important and sensitive area of industrial relations. Sanctions for failures in the consultation process by an employer were provided: complaint to an Employment Tribunal and the making of a protective award (s.189); prosecution for an offence (s.194), where an employer fails to notify the Secretary of State of certain redundancies under s.193.
  46. This legislation consolidates legislation originally passed in the 1970s when judicial notice can be taken of the fact that industrial relations and the competing rights of employers and employees were a sensitive and controversial issues.
  47. Bearing those matters in mind, I turn first to R v Golden Chemical Products [1976] 1 Ch 300. That was a case where the presentation of a petition for the winding up of a company might cause serious damage to the company's reputation or stability. Submissions were made that in those circumstances the true construction of s.75(1) of the Companies Act 1967 required the Secretary of State personally to exercise the power to present a petition, rather than acting through an officer of his department. The Carltona decision was considered, and a submission based on the sensitivity or the seriousness of the decision as pointing to the need for a decision of the Secretary of State personally was rejected by Brightman J. He held that there was no obligation on a minister to exercise his powers personally, even when those powers involved a serious invasion of the freedom or property rights of the subject. Applying the Carltona principle, the Secretary of State was entitled to act through an officer in the department.
  48. That decision was in keeping with R v Skinner [1968] 2 QB 700. In that case the court was concerned with whether the personal approval of the Secretary of State was required for breath-testing equipment, by reason of s.7 of the Road Safety Act 1967. The court held that the Carltona principle applied so that an official in the Home Office could give the necessary approval. The fact that the decision had implications for thousands of motorists and was concerned with a "vitally important" matter did not mean that the principle could not apply. Nor did the fact that a decision of this sort would be infrequent. Such an approach was echoed by Lord Woolf CJ, in Oladehinde at the Divisional Court stage. Lord Woolf said: at (1991) 1 AC 264E: that the Carltona principle "can apply to decisions of the greatest importance."
  49. Accordingly, although I take note of the nature of this legislation I am not persuaded that of itself it provides any significant support for an implication that Parliament intended to exclude the Carltona principle from s.194(2). It is to be noted that the offence created is only triable summarily and only punishable by a fine.
  50. I turn next to s.197 of the Act. That is a section which gives the Secretary of State the power to vary provisions as to consultation, notification and protected periods by statutory instrument, using affirmative procedure. This was relied on as showing that the Secretary of State has an important role in modifying provisions which can give rise to a criminal offence, and thus supporting the claimant's construction of s.194(2). Since the variation is to be achieved by means of laying a draft order before Parliament, it is clear that this must be a matter for the Secretary of State personally, and is not one for devolution to civil servants. I do not consider that this provision advances the debate. It is clearly intimately bound up with the procedures for laying amending subordinate legislation before Parliament and specific to that situation.
  51. What was referred to as the "double Carltona principle" is something of a misnomer because it is envisages an official who enjoys the benefit of devolution of a power under the principle, giving consent or authorisation to a third party. Such an exercise, of course, amounts to delegation rather than devolution of a power to the third party. Nonetheless it was contended that such a process would represent an unintended broadening of Carltona and that case law did not support such a process.
  52. One of the cases cited was Metropolitan Borough of Lewisham v Roberts. In that case an official in the Ministry of Health, acting as the minister under the Carltona principle, delegated to the Town Clerk certain functions in relation to the requisitioning of a house. The contention that the Town Clerk had no authority to requisition the house because the official had delegated the power to requisition without specific authority from the minister was rejected. Each member of the Court of Appeal held that the minister was entitled to act through an official of his fepartment without giving specific authorisation and that that official could delegate his function to the Town Clerk. No question of delegation arose as between the minister and the official so that the principle summarised in the Latin tag delegatus non potest delegare exemplified in Anderson v Hamlin did not arise. See (1949) 2 KB 608 and Bucknill LJ at 619, Denning LJ at 621-622, and Jenkins J at 629. Contrary to the submissions of Mr Perry, I regard this decision as an example of the operation of the "double Carltona principle".
  53. I was not persuaded that Nelms v Roe represented an example of the "double Carltona principle" in operation. Lord Parker CJ made plain that a Police Superintendent was not acting as the alter ego of the Commissioner of Police. He based his finding on a different concept, namely implied delegated authority.
  54. DPP v Haw was another case involving the Commissioner. The analysis at [33] revealed the operation of a process very much akin to the Carltona principle, but again based on implied power to delegate. A similar position exists in relation to the Australian decision in O'Reilly.
  55. It is clear from Metropolitan Borough of Lewisham v Roberts that the operation of the "double Carltona principle" is possible if the Carltona principle applies to the statutory power in question. I therefore do not see this as a factor favouring the claimant's argument.
  56. It seems to me, therefore, that none of the wider factors relied upon as tending to show that the Carltona principle should be excluded from s.194(2), have that effect.
  57. I therefore revert to the terms of s.194(2). The sub-section identifies those who may institute proceedings and makes clear that only those persons have that power. Clearly a wider class of person than the Secretary of State personally is envisaged as having that power. The formula used is apparently unique. A formulation to similar effect has been used in other statutes precluding criminal proceedings "except by or with the consent of the Secretary of State" (see for example Education and Skills Act 2008, s.134) and "except only by or with the consent of the Secretary of State or the Director of Public Prosecution" (see for example Transport Act 2000, s.101(4)).
  58. The phrase "only by or with the consent of the Secretary of State" employed in s.194(2) is to very similar effect. It seems to me that concentrating on those words alone, the Carltona principle applies, permitting both a personal decision by the Secretary of State, by an appropriate official, or by some other person who has the specific consent of the Secretary of State. It does not seem to me that the final words of the sub-section "or by an officer authorised for that purpose by special directions of the Secretary of State" have the effect of excluding the Carltona principle. All these additional words do is to describe an additional class of person, who may institute proceedings by the mechanism of a direction of the Secretary of State. Whilst on one reading this further category of person might include Mr Whittaker, it would be also apt to cover others outside the Department who could not act as the minister's alter ego. The fact that Mr Whittaker might on one reading fall within that further category does not preclude him from coming within the Carltona principle by reference to the earlier part of the sub-section.
  59. There is nothing in the materials which the court has considered to suggest that the phrase "only by… The Secretary of State" excludes the application of the Carltona principle; accordingly Mr Whittaker is empowered by that route as the alter ego of the Secretary of State. There is to my mind no reason to draw the conclusion that the third category of person identified must exclude the operation of the principle. It is to be noted that the use of the word "or" is disjunctive. It has the effect of indicating that the third category of person who may institute proceedings falls into an additional category to those who either are to be treated as the Secretary of State or have his consent. As we have seen, it is possible for devolution and delegation of authority to co-exist within the same statutory provision.
  60. For these reasons I conclude that the claimant's contention that the sub-section excludes the Carltona principle must fail. I would hold that in this statute the intention was to create a further category of person who could be permitted to institute criminal proceedings. The creation of such a category does not oust the Carltona principle. When Mr Whittaker instituted these proceedings it is clear that he was not acting either with the consent of the Secretary of State or with his authorisation by reason of special or general directions. I hold that he accurately represented himself as acting as the Secretary of State's alter ego and that the proceedings were instituted in a lawful and regular manner. Accordingly, I would reject the claim, so that in this respect there is no obstacle to the case proceeding in the Magistrates' Court.
  61. MR JUSTICE FOSKETT:

  62. I agree that this application for judicial review should be dismissed for the reasons given by Treacy LJ. I add these brief observations out of deference to the careful arguments we have received on both sides and because my initial reading of s. 194(2) had led me to a provisional view to the contrary.
  63. My initial reaction, having read the subsection, was that if the Carltona principle was to apply, there was no need for the words "or with the consent of the Secretary of State or by an officer authorised for that purpose by special or general directions of the Secretary of State". The addition of such a provision seemed to me, therefore, to have the effect of negating the inference to which the Carltona principle gives rise (see paragraph 18 above).
  64. However, further reflection has persuaded me that Parliament's intention must have been to enable the Secretary of State also to confer the power to institute proceedings on a category of persons that would not necessarily have the power or authority to do so pursuant to the Carltona principle. As Treacy LJ has said (at paragraph 51), the generally disjunctive nature of the word "or" itself suggests that a category separate from and additional to the Secretary of State and those who act in his place pursuant to the Carltona principle was intended to be created. Whilst the provision under consideration first appeared in a statute enacted in 1975 (see paragraph 11 above), when devolving Governmental responsibilities to "agencies" was less prevalent than it is today, the contemporary value of such a provision can be understood. Nonetheless, whilst there is no pre-legislative material to assist in an understanding of why this particular formulation (which, as Treacy LJ has said, is in fact unique save to the extent of the two other examples referred to at paragraphs 13 and 14 above) was utilised, if the meaning of the provision, taken as a whole, is clear, the court must apply that meaning to it.
  65. I am fortified in this conclusion by the prevalence in many subsequent statutes of formulations similar to that which appears in, for example, s. 101(4) of the Transport Act 2000 referred to by Treacy LJ in paragraph 49 above. A provision of that nature plainly contemplates the possibility of criminal proceedings being instituted by a party (in that case, the DPP) separate from the Secretary of State acting personally or through an official by operation of the Carltona principle.
  66. I do not see any of the authorities to which Mr Perry referred as compelling the court to a different conclusion and I gratefully adopt Treacy LJ's analysis of those authorities.
  67. As I have said, in my judgment this application should be dismissed.
  68. Case No: CO/3400/2016

    IN THE HIGH COURT OF JUSTICE

    QUEEN'S BENCH DIVISION

    DIVISIONAL COURT

    THE RIGHT HONOURABLE LORD JUSTICE TREACY AND THE HONOURABLE MR JUSTICE FOSKETT

    FRIDAY 19 MAY 2017

      The Queen on the Application of David Michael Forsey Claimant
      - and -  
      The Northern Derbyshire Magistrates' Court Defendant

    - and –
    Robert Stephen Palmer First Interested Party
    - and –
    The Secretary of State for Business,
    Innovation and Skills
    Second Interested Party

    DRAFT ORDER

    UPON THE CLAIMANT'S APPLICATION for Judicial Review made by a Claim Form dated 29 June 2016

    AND UPON HEARING leading counsel for the Claimant and leading counsel for the Second Interested Party on 30 March 2017.

    IT IS ORDERED AS FOLLOWS:-

    1. The Claimant's claim be dismissed.

    2. Any application for a costs order to be made within 14 days. If not agreed, parties to provide brief submissions.

    3. Any application for leave or certification to be made within 14 days.

    Dated: 19th May 2017

    BY THE COURT


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