Carltona Revisited: Accountability and the ... - RDO \| OLR

$Page 1: Carltona Revisited: Accountability and the ... - RDO \| OLR$
Carltona Revisited: Accountability and the

Devolution of Statutory Powers

BY ANN CHAPLIN*

The Carltona doctrine allows persons who arenot the named recipients of a statutory discretionto exercise that power for and on behalf of theperson named in the statute. The statute says "Xmay do the following" and "Y" does it instead-andthe courts accept it. However, there are lim-its to the principle. It does not apply to just anystatutory power. From inside an increasinglycomplex government machine, the questionsthat arise are: "Who, exactly, can act for astatute-empowered minister?" and "To whichother recipients of statutory powers does thedoctrine apply?"As demonstrated in the seminalHenry Molot paper, published in 1994 in thisReview, answering these questions involves aconsideration of the basis or the doctrine. Itstraditional foundations have included: ministeri-al responsibility to Parliament, institutional hier-archy and control, legislative intent, thepresumption of validity and the distinctionbetween acting as the alter ego of another anddelegation. Government organizations are nowmuch more diverse and complicated than theywere when Car/tma was decided. That context,to ether with the advent of the "accountability"culture in government, suggests that a new lookat the doctrine and its sources may be warrant-ed. This paper argues that the "modern" conceptsof control and accountability have actually been,for many years, key factors in deciding whenstatutory powers may be exercised by personsnot namedin the statute. This insight may lead toa new way of determining when and to whomthe doctrine should apply.

La doctrine 6nonc~e dans l'affaire Caritona per-met A des personnes ne jouissant pas d'un pou-voir discr~tionnaire conf&r par la loi d'agir aunom une personne dtment autoris~e. La loi dis-pose que < <X peut faire ce qui suit >>, ><Y > agit isa place, et les tribunaux I'acceptent. 11 y a toute-fois des limites A ce principe; il ne s'applique passans 6gard au pouvoir confr6. Dans une struc-ture gouvernementale de plus en plus complexe,les questions suivantes se posent : << Qui, exacte-ment, peut agir au nom d'un ministre quijouitd'un pouvoir confr6 par la loi? >> et A A quid'autres disposant d'un pouvoir confr6 par la lois'applique cette doctrine? >> Comme le d~montreHenri Molot dans un article de fond publi6 en1994 dans la Revue, pour rtpondre A ces ques-tions il faut examiner les fondements de cettedoctrine. Traditionnellement, ceux-ci compren-nent la responsabilit6 ministrielle envers leParlement, la hi~rarchie et le contr6le organisa-tionnels, l'intention lgislative, la pr~somptionde validit6 et la distinction entre agir A titre d'al-ter ego de l'autre et la delegation de pouvoirs.Les organisations administratives sont beaucoupplus varies et complexes de nos jours qu'Al'6poque de l'affaire Caitona. Ce contexte et lanouvelle culture sclon laquelle le gouvernementdoit rendre compte de son agir su grent qu'ilfaut revoir cette doctrine et peser Ia pertinencede ces sources. L'auteur soutient que les con-cepts << modernes )) de contr6le et de respons-abilisation sont A vrai dire, et depuis longtemps,des facteurs cl~s pour dcider quand des person-nes non dysign~es dans la loi peuvent exercer unpouvoir confre par Ia loi. On pourrait peut-&reainsi d~gager de nouveaux param~tres pourd~terminer A qui et quand devrait s'appliquer ladoctrine.

Ann Chaplin obtained her LL.B. from Queen's University and her B.A. (Hon.) from the University of

British Columbia. She has been with the federal Department of Justice since 1988 and is currently GeneralCounsel with the Constitutional and Administrative Law Section. She has published several articles on publiclaw topics and is currently a candidate for an LL.M. at the University of Ottawa.The views expressed herein are those of the author and do not necessarily represent those of theDepartment of Justice or the Government of Canada.The author wishes to acknowledge the support and assistance of many colleagues, in particular Dr. PeterOliver and my Director, Martin Freeman, the many hours of work put in by student-at-law Claire Mummeand my assistant, Biljana Lalic and, always and for everything, Henry L. Molot, Q.C. The views, and particu-larly the errors, however, are entirely my own.

496 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA39:3 39:3

Table of Contents

497 1. INTRODUCTION

499 II. WHAT IS THE THEORETICAL BASIS FOR THE CRLTOVA DOCTRINE?

504 Il1. CONTEXT

504 A. "Before": Government Structures in the Caritana era

505 B. "After": Modern Government Structures

510 IV. DEVOLUTION DOCTRINE AND ACCOUNTABILITY

510 A. The Exercise of Ministerial Powers

510 1. Is the Power-Holder in Charge?

516 2. Is the Power-Holder Answerable?

520 B. The Exercise of Non-Ministerial Powers

520 1. Is the Power-Holder in Charge?

528 2. Is the Power-Holder Answerable?

531 V. CONCLUSION: A SUGGESTED FRAMEWORK FOR APPLYING

DEVOLUTION THEORY

497

Carltona Revisited: Accountability and the

Devolution of Statutory Powers

BY ANN CHAPLIN

I. INTRODUCTION

The Caritona doctrine, arguably the most popular judge-made rule in any

Westminster-style government, represents the pinnacle of judicial accommodation of

administrative necessity. It allows persons who are not the named recipients of a

statutory discretion to exercise that power for and on behalf of the person named in

the statute. This is done without any express statutory authority, and without the

Legislature having recognized a power to delegate. The statute says "X may do the fol-

lowing" and "Y" does it instead-and the courts accept it. If the doctrine was being

developed for the first time now, instead of in the middle of the last century, it might

attract more media attention than any other aspect of administrative law.

Why is such a remarkable degree of flexibility necessary? Legislatures (or

more specifically legislative drafters) tend to follow the rules of grammar and give

their statutory sentences a subject. Furthermore, even before the word "account-

ability" was given such prominence as a tool of governance, Parliaments needed to

name the person who would be held responsible for the exercise of an authority

conferred by a statute. If a mistake is made, if the power goes unused or if it is exer-

cised for reasons that Parliament did not intend, someone needs to be identified to

answer questions.

So it is convenient for legislators to name just one person when conferring

statutory authority. However, what is convenient for Parliament is often the exact

opposite for the recipient of the power in question-usually because legislators seem

to follow the same adage that guides many volunteer organizations: "if you want

something done efficiently, give it to the busiest person to do." The most common

recipients of statutory power were, traditionally, ministers of the Crown. They are a

I. Cadtzria Ltd. v. Cami cmn fV&ksand Ohm, [194312 All E.R. 560 (CA) [Cdtcnal.


group that quite easily fulfills the definition of"busiest."And so, as Lord Greene M.R.

wrote in 1943, "[iun the administration of government in this country the functions

which are given to ministers (and constitutionally properly given to ministers

because they are constitutionally responsible) are functions so multifarious that no

minister could ever personally attend to them."2

Legislatures, therefore, have deliberately created a rule, "the Minister may do'x,'" which is impossible to follow. This curious legislative practice seems particular-

ly unreasonable when coupled with a quite ancient rule of statutory construction: del-

egatus non potest deegare, or "a delegate may not re-delegate."The classic statement of

that doctrine (and its exceptions) was provided by John Willis, a Canadian author

whose short article was cited all over the Commonwealth for the next forty years:

"A discretion conferred by statute is prima facie intended to be exercised by the

authority on which the statute has conferred it and by no other authority ...."3

However, as Professor Willis was quick to point out, "[tihe maxim does not

state a rule of law; it is 'at most a rule of construction"' and a rule, he went on to say,

which can "be negatived by any contrary indications found in the language, scope or

object of the statute."4 In the cases which followed Chrltraa, the contrary indication

was often found, not in the text of the statute itself, but as being "implicit in the mod-

ern machinery of government."

Still, the fact remains that the courts are reading into a statute words that are

not there. The words in question, according to Professor Willis, are "or any person

authorized by it."' That this is a significant interpretive step is illustrated by the dis-

comfort some judges have shown in applying the concept. Lord Denning, for exam-

ple, would have preferred every civil servant exercising a ministerial authority to use

the words "I 'am directed by the Minister,'" thereby changing an implicit authoriza-

tion into an explicit one.7 And Lord Parker, while nonetheless finding an implicit

authority to delegate, felt "grave difficulties in extending" the Carltroa principle to a

power conferred on a non-ministerial recipient-in that case the Commissioner of

Metropolitan Police.' (As we shall see, Lord Parker's views have not been universal-

ly shared on this point.)

2. Ibid at 563.3. John Willis, "Delegatus Non Potest Delegare" (1943) 21 Can. Bar Rev. 257 at 259.4. ibid. at 257, 259.5. M *rqditan Borough &eiiam v. Rdxts, 19491 2 K.B. 608 at 621,19491 1 All E.R. 815 (C.A.) [Rd-ts

cited to K.B.I.

6. WVIlis, sura note 3 at 259.7. Woollettv.M mAister /la'culture and idaie%,l19S55 I Q.B. 103at 120,1195411 WL.R. 1149 1Wxileetcited

to Q.B.I.The explicit authorization thus referred to would usually, however, be fictitious, as the whole pointof devolution is that the Minister need not turn his mind to the issue-either to decide it himself or toinstruct others.

8. NdeNmv. Rool197011 WL.R. 4at8, (19691 3Al E.R. 1379lNdmcitedtoWL.R..

CARLTONA REVISITED: ACCOUNTABILITY AND THE DEVOLUTION 499OF STATUTORY POWERS

Some limits to the principle, therefore, are implied. The central, indeed

almost daily, question for government lawyers is "what is the scope and extent of the

doctrine's application?" From inside an increasingly complex government machine,

this question usually takes two forms: "Who, exactly, can act for a statute-

empowered minister?" and "To which other recipients of statutory powers does the

doctrine apply?"

Both of these questions were the subject of a touchstone article in this area,

Henry Molot's paper entitled "The Carltaia Doctrine and the Recent Amendments to

the Intrpretation Act."9 Not only has the Molot article been the standard text on the

subject in this country ever since, it has formed the primary basis for a number of

judicial pronouncements on the doctrine-notably the Newfoundland Court ofAppeal's decision in R. v. NDT Ventures Ltd."0 As the paper demonstrates, answering

the two questions raised in the last paragraph involves a consideration of the basis for

the doctrine. Over the years, several underlying theories have been identified by the

cases, including: responsibility to Parliament, institutional hierarchy and control, leg-

islative intent, the presumption of validity and the distinction between acting as the

alter ego of another and delegation.

With the advent of the "accountability" culture in government, a new way of

putting the question would be to ask how each proposed application of the doctrine

will impact on the capacity to hold to account those responsible for the exercise of

statutory power. This paper will attempt to pursue the question of the scope and

application of the Carltona doctrine from this perspective.

II. WHAT IS THE THEORETICAL BASIS FOR THE CARLTONA

DOCTRINE?

In 1942, the firm of Carltona Ltd. owned a factory in Willesden, England. In the

interests of the war effort, "[it] was decided as the result of discussions to close the

factory . . . thus setting free the accommodation which the factory was capable ofgiving and the labour which the factory was employing."" This decision was taken

in the exercise of the power given by the Defence (General) Regulations to "a com-

petent authority" to "take possession of any land.""- A notice was accordingly issued

to the owners of the factory, signed by a Mr. Morse, who was the assistant secre-

9. Henry Molot, "The Caritara Doctrine and the Recent Amendments to the Interpretation Act" (1994) 26Ottawa L. Rev. 257.

10. [20011 NFCA 16, (2003) 225 Nfld. & P.E.I.R. 181, (2004) 4Admin. L.R. (4th) 110 [NDTVenturecited toAdmin L.R.I.

II. Cartcna, supra note 1 at 560.

12. IMid at 561.


tary of the Ministry of Works and Planning. It appears to have been signed "for and

on behalf of the Commissioners of Works," but that part of the letter is not repro-

duced in the judgment.

Mr. Morse was not a "competent authority" under the Regulations. That status

was given only to the Commissioners of Works. However, since the Commissioners

never met, their authority, by virtue of the Ctvsn Lands Acts, 1841 and 1852, was

exercised by the First Commissioner, who was the Minister of Works and Planning.

The notice was challenged on several grounds, one of which being that it was not

issued by the authority empowered by the Regulations. 13

In the Court of Appeal, Lord Greene M.R. dismissed that argument in

one paragraph:

In the administration of government in this country the functions which are given to

ministers (and constitutionally properly given to ministers because they are constitution-

ally 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 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 administration 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. 14

This famous passage is a fascinating combination of blunt description of reali-

ty and quite esoteric political science. In its ten sentences, Lord Greene explains the

interpretive principle he is creating from several perspectives.

First, following accepted rules of statutory interpretation, Lord Greene gives

the regulation a meaning that makes sense in its context, in this case, by emphasizing

administrative necessity-it cannot be supposed that ministers should, themselves,

stop and consider each potential requisition. Since this is a factual impossibility, the

authors of the regulation cannot have "meant" that. In effect, the court is saying that

reading this regulation to require the personal act of a minister for every requisition

13. Iid at S60.14. Mid at 563.


would result in an absurdity. Fairly basic principles of statutory interpretation, there-

fore, would cause the judges to strive to fimd an alternative reading.

Second, he focuses on the fact that the person who acted in this case wasemployed inside a hierarchy and was subject to the authority of others. The powerwas exercised "under the authority of" the minister by a "responsible official of thedepartment." Lord Greene emphasizes that this practice is one on which "[t]he whole

system of departmental organisation and administration is based.""- In this respect,

the "standing" of the official within the department is relevant to the permissibility ofhis exercising the statutory authority of the minister. If an employee of inappropri-

ately junior standing is selected, that is an error for which the minister can be expect-ed to answer to Parliament. It is interesting to note that the appropriateness of thedecision depends, therefore, not only on its having been made fairly and correctly, but

by a person at the appropriate place within the hierarchy. In this way, administrativestructure, which is generally created outside of statutory controls, becomes a factorin the defence of a challenged statutory decision.

Third, the judgment includes the central phrase that distinguishes the devolu-tion of authority permitted under the Carltona doctrine from delegation. The decisionof the official is, of course, the decision of the minister. It is not a decision taken underan authorization or delegation from the minister, nor under his supervision orinstruction. It is not even taken on his behalf (in the sense that the minister decidedand the official simply signed the notice in his stead). It is the minister's decision,despite his or her never having heard anything about it. For this reason, the Carltona

doctrine will also be referred to in this paper as "devolution doctrine" or "devolutiontheory." Further discussion of the distinction between devolution and delegation

appears later in the paper.

There is no mention of the term "alter ego"in the Carltona decision itself, but

in subsequent cases and in commentary on the doctrine this term, borrowed fromcorporate law, is used to describe the unique role of the departmental official who

stands "in the shoes of the Minister."6 In its origins, in the corporate context, the sta-tus of "alter Cgd' or "second self" was not a tool available to make transactions moreefficient, but was instead employed by courts as a means of holding individual stock-holders directly liable for the acts of a corporation, in spite of, indeed in disregard

for, the corporate status of the company. 17 To establish that the doctrine applied, ithad to be shown that the stockholders had made the corporation a mere conduit for

15. Ibid.16. P, v. Skinne,[1196812Q.B. 700at 709, 119681 3AllE.R. 124at 128[SkinnercitedtoQ.B.1.17. Black's LawDiticna7v, 8th ed., s.v. "alter ego." In Canada this doctrine is more frequently referred to as

"piercing the corporate veil," though it is referred to as the "alter ego" doctrine in the United States.


the transaction of their own personal business, to such an extent that the separate

individualities of the corporation and its stockholders had, in fact, ceased to exist. In

that context, the court attributed liability to the individual because of the fraud per-

petrated on third persons dealing with the corporation."

That the Carltona doctrine has come to be described as the alter ego principle

suggests that there may be more to this interpretive tool than providing governments

with the administrative convenience they need to operate. The other side of the coin

is that the doctrine is also about attributing responsibility--and allowing Parliamentto identify those responsible for administrative decisions. An interpretation that ran

"if the statute reads 'the Minister may act' only the Minister may so act" would

amount to the courts telling Parliament that it may not attribute the acts of depart-

mental officials to the head of the department. The point is that the doctrine is asmuch about attributing ultimate responsibility within a structure as it is about pro-

viding the named recipient of a power with an efficient way in which to exercise it.

Fourth, the Carltona decision invoked the constitutional convention of ministe-

rial responsibility. In the paragraph quoted above, Lord Greene uses the word "consti-

tutionally" three times: to describe the propriety of Parliament conferring powers on

ministers, to explain that the decision of the official is that of the minister, and to refer

specifically to the responsibility of ministers to Parliament. The minister is responsible

in two senses: he or she is responsible for the decision taken by the official, indeed "for

anything that his officials have done under his authority," and for the selection of the

appropriate, experienced official to perform important duties. If either of these deci-

sions is deficient, "Parliament is the place where complaint must be made . .19It is important to note here that the alter ego fiction applies equally to both

decisions-the decision taken by the official and the selection of that official to make

the decision. The minister is no more involved, in practice, in choosing the decision-maker than he or she is in the decision itself. However, the selection takes place with-

in the hierarchy of the department, atop which the minister sits as the repository of

power and responsibility. For everything that takes place within that chain of power

and responsibility, the minister is accountable to Parliament.

At least four factors, therefore, can be seen to be at work supporting the doc-

trine, even as early as the Carltona decision itself:

1.statutory interpretation, and the search for legislative intent in

context;2. institutional hierarchy and control;

18. See Fili. ivs v. 707739 AIbu-a, 2000 ABQB 139, 259 A.R. 201, 77 Alta. L.R. (3d) 302, at para. 207 for a dis-cussion of the principles and case law surrounding this doctrine l~hillipscited to A.R.I. See also "Piercing thecorporate law veil: the alter ego doctrine under federal common law" (1982) 95 Harv. L. Rev. 853, for adiscussion of the doctrine in the American context.

19. CQutona, upra note I at 563.


3. the alter ego principle, as distinct from delegation; and4. the responsibility of a minister to Parliament.

The thesis of this paper is that these four ideas can be seen to resolve them-

selves, particularly in the context of modern Westminster-style government, into the

twin concepts of control and accountability.

Two of the Caritana themes place a lot of emphasis on the structure of the

organization in which the power in question is being exercised. This emphasis becameeven more pronounced, as we shall see, in the cases which followed Cartcna. Thepresence of an institutional hierarchy, in which the exercise of powers is subject to

close supervision and guidance, was key in some of the decisions. In others, it was thefact that the power was conferred on a minister of the Crown who is the head and

raiscn d'Oti of a departmental organization. All of these cases make reference to devo-

lution as the product of, and indeed the reason for, departmental administrations

based on hierarchy.

The emphasis on hierarchy in these cases seems to be related to the capacityof the person on whom decision-making power is conferred to exercise control overthe persons who make decisions on his or her behalf. Because he or she sits atop an

organization dedicated to supporting his or her statutory functions, the power-

holder, at least in theory, can choose who exactly within the institution can exerciseeach power and can govern its exercise through policies and directives. This factassists the courts in finding that control over the decision has not left the hands of the

person on whom it was bestowed by Parliament.

Another idea raised by at least two of the Cartona factors is that of attribution,

or answerability. As the doctrine developed, courts that employed the alter ego anal-ogy could be seen to be focussing on the question "whose decision is it, really?"They

found in some cases that no delegation had taken place, since the ownership of, and

therefore the duty to answer for, the act never changed. Other decisions reliedinstead on the minister's responsibility to Parliament, in order to emphasize that the

minister remains answerable for all exercises of his or her authority, even those per-

formed by others.It should be noted that the answerability in question here does not seem to be

a duty to answer in court. It is clear from the Cartna decision that the duty Lord

Greene describes is a democratic duty, that is to say, one that is owed to the people's

representatives.2

0

20. This was emphasized by the Prince Edward Island Supreme Court in Re Butler and Land Use Gy'rmisin(1979), 20 Nfld. & P.E.I.R. 469 at 476, (1977) 78 D.L.R. (3d) 164 at 169 [Re Butler dted to D.L.R.1 where,citing Skinner, supa note 16, the judge characterized the devolution principle as "based upon the doctrine of'ministerial responsibility' which holds that the Minister is responsible to the Legislature but not to theCourts for actions of his subordinates."


Before going further in our consideration of the possible scope of devolution

doctrine, it may be important to consider the context in which today's courts come

to apply Lord Greene's 64-year-old decision. The landscape has changed in the past

six decades with respect to both the structure of government institutions and the

practice and theory of"answerability" in government.

III. CONTEXT

A. "Before": Government Structures in the Cartona era

Lord Greene, in his succinct statement of public administration practice in 1943

England, described a world in which ministers had power and public servants did

not; where the duties of public servants were confined to exercising the powers of

their minister; where the "whole system of departmental organization and admin-

istration" was based "on the view that ministers, being responsible to Parliament,

will see that important duties are committed to experienced officials.""' In short,

he assumed a governing universe that reflected, in all its major operations, that car-

dinal tenet of the English Constitution: responsible government. Peter Hogg has

summed up that principle as follows: "All the acts of the department are done in

the name of the minister, and it is the minister who is responsible to Parliament for

those acts." 2 This governance model proceeds from some basic assumptions con-

cerning the respective roles and capacities of ministers, as elected politicians, and

officials, as departmental employees:

I .The minister's name attaches to acts done in his or her department, the

official's does not;

2. The minister is essentially political and is required to defend himself or

herself in public, the official is neutral and anonymous;

3. The minister must explain the actions of his or her department toParliament, the official cannot be called to account in that forum;

4. The work and powers of the minister are inherent in his or her office,

those of the official derive from the minister;

5. The minister's responsibilities are rooted in the constitution, the offi-

cial's are limited to supporting that constitutional role; and

6. The minister is named and empowered by the Legislature, the official

is not.

21. Car/oa, supra note I at 563.22. PeterW. Hogg, Cs'dtutial LawdofCanabd, Sth ed., looseleaf (Toronto:Thomson Canada Ltd., 2007) vol. I

at 9-13.


The structures that support such a model are the familiar "ministerial" depart-

ments: units of public servants, almost always created by statute, under the direction

of a deputy minister and presided over by a minister of the Crown. Traditionally,

when the government decided to undertake work in a new subject area, or to divide

the work of an existing department, the organizational unit established to house the

new or newly-identified function was another government department. Usually, such

departments had a departmental Act, which often made only very brief mention of

the department itself. Except for the one article which "establishes" the department

(and another providing for the deputy minister), the remaining text of these statutes

typically mentioned only the presiding minister, conferring on him or her powers,

duties and responsibilities over the subject area in question. Such duties were often

augmented by other statutory schemes which named the departmental minister as

the decision-maker.

This legislative structure underscores the essential feature of a ministerial

department: it exists only to support its minister. The department and its officials

exercise powers and perform functions and duties only for and on behalf of the min-

ister. It is the minister who is accountable to Parliament for all of the functions per-

formed by his or her department. Thus the ministerial department is the pure

organizational expression of responsible government.

At the time Caritcna was decided, this was the structure that was the most

common sub-unit of Westminster-style governments-or at least, it was the struc-

ture within which Lord Greene assumed all government decision-making took place.

As we shall see, that assumption might not be warranted today.

B. "After": Modern Government Structures

In a paper entitled Reviewof the ReTpxnslblities and Acminta bilities ofMinistxs and Sauicr

Cifdals, issued by the President of theTreasury Board in 2004, the following descrip-

tion of the current "operating context of government" appears:

Over the past 50 years, the government has become much larger and more complex and

the demands upon ministers and deputy ministers have increased proportionately. Like

other organizations, the government is challenged to respond effectively to the emer-

gence of a global economy, startling advances in information technology, social and

demographic changes, and a difficult security environment. But the government faces

these on an exceptional scale: it is the single largest organization in the country, with

annual expenditures of approximately $200 billion and over 200 departments, agencies,

and institutions that operate in every region of Canada and in over 100 other countries.

The federal public sector employs more than 450,000 people, delivering over 1,600 pro-

grams and services. Consequently, while every transaction can be important, ministers

and senior officials find it a real challenge to remain fully informed about all matters for

which they are accountable.

The structures within government are now more diverse and include traditional depart-ments, special operating agencies, Crown corporations, regulatory agencies, and various

hybrid organizational arrangements. Moreover, many of the core services have been out-

sourced to the private sector, changing the managerial control exerted by the Public


Service and raising questions for parliamentary scrutiny. Many of these structures do not

fit neatly within the traditional view of government that prevailed when the doctrine of

ministerial responsibility took shape. In this respect, some commentators have argued

that 18th-century concepts of accountability are clashing with 21 st-century concepts of

public service organizations and delivery of services.23

This description is borne out by a review of the legislation that provides the

rules and categories for most of the organizations in the federal public service. At the

back of the Financial Adninistration Act is a series of lists of institutions, arranged for

different purposes within that statute. 24 The most recent list is one that was added as

Schedule VI to the Fnandal Adninisttion Act by the Federal Axountability Act in

December 2006. -5 It has three parts-one containing traditional ministerial depart-

ments and the other two listing a variety of entities at varying degrees of distance

from the traditional department-minister model. There are 20 departments in the

first list and a total of 77 in the other two. Moreover, as noted in the Treasury Board

document, taken together these represent less than half of all Canadian government

entities (the rest being organizations that have an even more tenuous connection to

the political centre of the executive).

In themselves, these numbers suggest that what is "normal" in terms of a gov-

ernment institution's relationship with a minister has evolved significantly since the

1940s. The 77 institutions in Parts II and III of Schedule VI of the Financial

Adrinistration Act include administrative tribunals, departmental corporations, offi-

cers or agents of Parliament and the Royal Canadian Mounted Police (RCMP). If

institutions such as these now form the majority of government bodies, the applica-

tion of key public law concepts, like devolution theory, can be expected to become

more complicated, to say the least.

There is enormous variation in the structure of the institutions in Parts I1 and

III of the Schedule. Some are hierarchical in nature, such as offices presided over by

an agent of Parliament, like the Information Commissioner. Some have a corporate

structure, with a board of directors (or "board of management") and executive offi-

cers, with a variety of prescribed relationships. Some consist of quite autonomous

actors such as judges who sit exdffiidoas members of administrative tribunals. Others,

like the RCMP, are composed of actors who are autonomous with respect to their

substantive function, but subject to a quite rigid hierarchy for other purposes. They

also display a wide variation in terms of their relationship with a minister. Some are

23. Canada, Treasury Board Secretariat, Re&iewothe Reaxtbilitife and Ax mtabilites JAInisurs and SaniorCl7dals-t-A ng the bemtiaors cf Cardans (Ottawa: Treasury Board Secretariat, 2005) at s. 3.3, online:Treasury Board Secretariat <http://www.tbs-sct.gc.ca/report/rev-exa/ar-er-e.asp> lReievofRsrn nhiti es1.

24. R.S.C., 1985, c. F-I I,as am. by S.C. 2006 c. 9, Sch. VI, as am. by fiadi AmuntabiliAct S.C. 2006, c. 9,s. 270 1 Finandal AIorini;mtion Acl.

25. Ibid at ss. 257-75.


"presided over" by a minister, just like traditional departments. Others have a minis-

ter who is "responsible," but only in the sense of being the one who formally seeks

appropriations for the institution and who tables its reports in Parliament. In-

between are structures that give a minister varying degrees of direction over or input

into the operations of the institution. In all these cases, however, the institution does

not form part of the minister's own traditional department. The application of devo-

lution doctrine in the world beyond ministerial departments would have to be based

on criteria that made sense of this wide variety of structures.To the extent that the key concept is not structure but "answerability," there is

the added impact of the new enthusiasm in Westminster-style governments for com-

mitting accountability theory to writing. What was once governed entirely by the

unwritten English Constitution, or by the unwritten portions of the constitutions of

other countries, has now begun to appear in a variety of written instruments: frame-

work agreements, published guidance to ministers and, in a few cases, legislation. As

we will see in the example of the United Kingdom "next steps" agencies, a text that

governs a relationship is open to interpretation, in light of the language employed.

Where "operational" responsibility is assigned to a chief executive officer, rather than

a minister or deputy minister, the debate that arises may be one that focuses on the

meaning of "operations" versus "policy"-not on constitutional concepts.

It is intriguing, in this connection, to explore the descriptions of accountabil-

ity that are now provided in the text of the Canadian Financial Aninstration Act.26

Section 16.3 of the Act provides that deputy ministers of traditional departments,

and the senior officials whose titles are set out opposite the other entities in Schedule

VI, are "accounting officers." Section 1 6.4 then makes accounting officers "account-

able before the appropriate committees of the Senate and the House of Commons"

with respect to a list of subjects, all having to do with departmental administration.

The provision deals with this issue in two subsections, one referring to the tradition-

al ministerial departments, and the other to the rest of the entities in Schedule VI. In

the case of ministerial departments, the accounting officer's accountability is said to

be "within the framework of the appropriate minister's responsibilities and his or her

accountability to Parliament, and subject to the appropriate minister's management

and direction of his or her department . . . ." In the case of the other entities the pro-

vision is identical, except that there is no reference to management and direction by

the minister. Finally, section 16.5 provides the reason that the Schedule is divided into

three parts, instead of two. For entities named in Parts I and II of the Schedule only,

section 16.5 provides a method for resolving disputes between the minister and the

accounting officer where they disagree on the interpretation of aTreasury Board pol-

icy, directive or standard.

26. Frnandal Adninstration Act, su/a note 24 at ss. 16.3-16.5.


These provisions recognize that ministers are accountable for more than just

the traditional departments over which they preside. Indeed, that is borne out by the

documents issued by the Canadian government to explain ministerial responsibility.

The document entitled Actountable Govmnmt: A Guide for Mnisters and Semtaries of

State, 2007, issued by the Privy Council Office, states that "[tihe responsible Minister

is accountable for the overall effectiveness of non-departmental bodies in his or her

portfolio, as opposed to their day-to-day operations." 7 By "responsible Minister" is

meant the minister identified as responsible for the organization in its constituent

statute, or the minister designated as "appropriate" for that body, under the Finandal

Adninistration Act. "Accountability always includes answerability," as the Treasury

Board document referred to earlier points out. 2 Therefore, for some purposes, at

least, ministers are expected to answer in Parliament for bodies over which they have

no "management and direction."

Indeed, one commentator has asserted that "[w]ith the exception of Crown

corporations, [quasi-judicial] agencies and commissions, and . . . independent foun-

dations .... no one in Ottawa works at arm's length."29 In his book The Politics of Public

Managaemt, David Good discusses what unites and separates bodies like the Privy

Council Office, which "operate at the heart of government" and those which are,

structurally, at "the service periphery of government," like the Parks Canada Agency.

He states: "Despite all the discussion over the past decade about new forms of orga-

nizational structure for both policy and service delivery, when it comes to the essen-

tial features of government-performance and accountability-the Privy Council

Office and Parks Canada-have more in common than they do in difference." 0 As

though to make Good's point for him, these two institutions now appear next to each

other in Part II of Schedule VI of the Financial Adninistration Act, implying that they

fall under the same category of ministerial accountability, although their governing

structures are markedly different.

In short, the 21st century Canadian government is made up of a variety of

structures, with a variety of governance models, almost all of which are, to some

degree, the subject of a minister's accountability to Parliament. What impact will this

context have on the application of devolution theory? Does it matter for what pur-

poses the ministers are made answerable for the activities of these organizations?

27. Canada, Privy Council Office, Aoumtable C ,rnnmt: A Gude for Mnisters and Srajclmies ofState, 2007(Ottawa: Her Majesty the Queen in Right of Canada, 2007) at 14, online: Privy Council Office<http: //www.pm.gc.ca/grfx/docs/guidemin_e.pdf>.

28. Rev'iew fReposbilitics, stpr note 23 at II.

29. David A. Good, The Pdidcs ofPubic Managann: The H-td)CAudt JCGrants and Cntiuticms (Toronto:University ofToronto Press, 2003) at 157.

30. Ibid.


Does it matter whether others are also accountable for those activities? Does it mat-

ter in what forum they are required to account? These questions appear relevant in

regards to whether ministerial authority could devolve within such organizations.

Also of interest is the fact that ministers are not alone in being treated by leg-

islation as "accountable" to Parliament. The most recent revision of the Canadian

Public Senice Enployn-mit Act states in its preamble that the Public Service

Commission "is accountable to Parliament.""' The Public Service Commission is

made up of Governor in Council appointees who may not hold any office that is

inconsistent with their employment within a non-partisan and independent body. In

this instance, at least, legislators have recognized that accountability to Parliament is

not limited to ministers.

In addition to this structural variety, the substantive context in which govern-

ment organizations operate is also increasingly complex. The intricacies of the legal

rules surrounding government activities such as procurement and hiring have

reached a point where the devolution of authority from those named as responsible

to those who are actually trained to make decisions is not just administratively con-

venient, but substantively necessary. A recent report by the Public Service Human

Resources Management Agency of Canada noted that the Agency is experiencing a

shortage of administrative staff. The report linked this problem directly to "cracks"

which could begin to appear in "accountability, transparency and probity."32 As the

report explained, without adequate administrative staff or junior officers, the only

people available to carry out administrative duties will be "senior officers and even

executives." This would lead to "a greater likelihood of errors in areas such as con-

tracting, records management, purchasing and even HR [human resources] adminis-

tration"33 because managers often rely on administrative and other support staff to

"know the rules," administer the processes and watch for problems.

It is no longer ministers who are the exclusive, or even the primary, recipients

of statutory authority. While many laws still confer authority on ministers, many

more empower such officials as officers of Parliament, commissioners, chairs of

boards and tribunals, presidents of departmental corporations and agencies, chief

officers of health, immigration officers, investigators and superintendents of bank-

ruptcy or financial institutions. What application does devolution doctrine have in this

new context?

31. PubficSorviceEnplcavnftAct, S.C. 2003, c. 22, ss. 12, 13.

32. Public Service Human Resources Management Agency of Canada, 2006-07Es trmtes: Rqx n Hans andfitoi'e; (Ottawa: Treasury Board of Canada Secretariat) at 48, online: Treasury Board of Canada Secretariat<http:// www.tbs-sct.gc.ca/rpp/0607/pshrmac-agrhfpc/pshrmac-agrhfpc-e.asp>,

33. [hid.


IV. DEVOLUTION DOCTRINE AND ACCOUNTABILITY

Let us assume, for the moment, that devolution theory depends, for its operation, on

the responsibility of the named power-holder for the person on whom the power isdevolved. This responsibility would seem to have two aspects-one internal or insti-

tutional and one external or responsive. On the one hand, we would ask, "Is the

power-holder in charge here and, in particular, is that person in charge of those exer-

cising the power?" On the other, we would ask, "Could the power-holder be called

upon to answer for the actions of the person exercising the power and, if so, where?"How would our exploration of the scope of the doctrine play out from this perspec-

tive? Do the decided cases give us any clues?

The analysis will be arranged to respond to the two questions posed at the out-

set: "Who, exactly, can exercise the powers of a minister?" and "To which empoweredofficers does devolution doctrine apply?"

A. The Exercise of Ministerial Powers

1. Is the Pow- Holder in Charge?

The cases which followed Carttona often made reference to the public servant who

exercised ministerial power being "directed by" or "selected by" the minister.34 A good

example is provided by R. v. Sexretary of State for the Hour Deparnt, Ex parte

Clade inde: "There is no express or implied statutory prohibition on the employment

of immigration inspectors selected by the Secretary of State with due regard to their

seniority and experience to authorise the service of a notice of intention to deport."5

These terms are not used literally as describing historic fact. Civil servants arealmost never directed by, or even selected by, a minister. They are subject to thedirection of, and are assigned their duties by, their bureaucratic superiors. What the

judges who used these words meant was that, very much in theory, those actors couldhave been directed by or selected by the minister. "The whole system of departmen-

tal organisation" in which civil servants operate is geared to seeing that the minister'sduties are performed.3 6 In such places, again in theory,"[tihe question of appointment

ultimately rests with the minister, as also does the question of dismissal . . .- sIn most cases, the judges admit that these assertions are based in fiction-

ministers do not appoint and dismiss departmental employees any more than they

direct or select them for certain tasks. Is it really necessary, therefore, that an offi-

34. W)dlet, supra note 7 at 120; X v. IHariscn, 119771 S.C.R. 238 at 245, 66 D.L.R. 660 IHarin cited toS.C.R.I.

35. 119911 I A.C. 254 at 295, 119901 3All E.R. 393 1Claadh'ndecited toA.C.1.36. Crtana, sua note I at 563.

37. Rcdsf syra note 5 at 618-19.


cer who is to exercise a minister's authority work in a department presided over by

that minister?

One reason for the development of the theory in these terms is to exclude the

possibility of one minister's powers being exercised by another minister, or the offi-

cials of a department belonging to another minister. As the cases ofJadccn Stansfield

& SIns v. Butteirth and H. Lavender & Sen Ltd. v. Mnister of Hntsing and Local

Develcpnrmt illustrate, other ministers and their officials are considered "statutory

strangers" to the named minister and his or her powers.3 ' In the latter case, the court

considered an exercise of the Minister of Housing and Local Government's planning

authority. In his decision, the Minister had stated that his power to release reserved

land for mining would not be exercised unless the Minister of Agriculture, Fisheries

and Food was not opposed. The court concluded that the Housing Minister had

unlawfully delegated his authority to the Minister of Agriculture. It agreed with the

applicant, who had argued "that the Minister, who has a duty to exercise his own dis-

cretion in determining an appeal, has in this case delegated that duty to the Minister

of Agriculture, who has no such duty and is, statutorily, a stranger to any decision." 3'In Jacksn Stansfield, the Minister of Works, rather than devolving his authori-

ty to officials in his own department, attempted to delegate it to the Minister of

Health and local authorities empowered by the Minister of Health. 4" The Court of

Appeal would have none of such "inter-departmental arrangements."The judges were

clear that the Minister of Works could have appointed "what servants or agents he

liked to act as licensing officers." 4 However, in authorizing the Minister of Health to

take over the licensing-and then hand it off to local authorities-the Minister of

Works had done nothing of the kind. Neither the Minister of Health nor the local

authorities could be servants or agents of the Minister of Works.

The word "agent" is used fairly frequently in these cases.4 2 Like "direction" and"selection," the concept does not seem to be used literally-there is no formal or

even informal agency relationship between the minister and public servants in the

department. Instead, the notion seems to refer back to the concept of control. In

Wodlett, the term "agent" was used to differentiate between the two capacities in

which the person who exercised the minister's power served. In that case, the public

38. [194812 All E.R. 558, 112 J.P. 377 (C.A.) Uadm Stans ddcited to All E.R.1; [197013 All E.R. 871,1197011 W.L.R. 1231 (Q.B.D.) [Ltunadlcited toW.L.R.J.

39. Iavnd-, ibid at 1237-38.40. Jadzon Stansdhd, suqa note 38.

41. Ibd at S65.42. Wxlett, wupra note 7 at 137.The distinctions between delegation, devolution and agency were referred to

by the Supreme Court of Canada in RdemceRe: Rgulationsin Relation to cerhicals 119431 S.C.R. 1, ID.L.R. 248.


servant in question, a Mr. Comins, held two offices. He was both an employee of the

department and the secretary of a tribunal. In the first capacity he was the minister's

agent; in the second he was not. Since he had acted in his second capacity in this case,

his decision could have been held invalid. 4 The reason for this conclusion likely had

to do with the need for the tribunal in question, an agricultural land tribunal, to be

seen, to some extent, as independent from the minister (although this point raises a

question about the wisdom of Mr. Comins' cross-appointment in the first place!). It

would be inappropriate, even if technically true, for the secretary of the tribunal to

be seen as under the control or direction of the minister. However, the price of ensur-

ing the appearance of independence was that the secretary could not be relied on for

the exercise of the minister's powers.

We now begin to come to the heart of the issue. Since the level of control of

a minister, even within traditional ministerial departments, is to some extent a myth,

we may not be concerned with actual control, despite judicial dicta to the contrary.

What may be the issue is the intended function and status of the department or insti-

tution in question-what is its raisn d'A- and is this compatible with being the min-

ister's servant, agent or alter ego? Does it do violence to the institution's own role for

its employees to act as the anonymous hands and feet of this particular political mas-

ter? Another way to put the question is the following: is the body intended to carry

out the policy of the minister or to direct its own affairs independently?If the body or the decision-making structure has a statutory base, this way of

looking at the question brings us to the issue of legislative intention. In the case of

Rarmvsad v. Canada (M4nister of Manpovwer and limigration),4 the Supreme Court of

Canada had to determine whether an immigration officer could exercise the Minister

of Immigration's statutory authority to order a deportation. In their analysis, the

Court examined the legislation very closely, noting that it named and empowered

various actors, not just the Minister: "In the Ilrigration Act, Parliament has recog-

nized the existence of different levels of authority, namely the Governor in Council,

the Minister, the Director, the Immigration Officer in charge, the Special Inquiry

Officer and the Immigration Officer. The authority granted by Parliament to each of

such levels is clearly specified in the Act." 4-

The Court went on to note that, where the sharing of authority between

actors was intended, it was specifically provided for by Parliament-but only by list-

ing a series of people who could exercise the same power. They concluded that the

scheme of the Act reserved the most important functions for the Minister's discre-

43. W~iett, ibid.

44. 119781 2 S.C.R. 375, 81 D.L.R. (3d) 687 [Rar madcited to S.C.R.J.45. Ibidat 381.


tion, while assigning authority in other areas directly to specified officials. This

arrangement provided "clear evidence" that Parliament intended "that the discre-

tionary power entrusted to the Minister be exercised by him rather than by his offi-

cials acting under the authority of an implied delegation . . . ." 46

One way of explaining the Court's decision in this case is to see it as honour-ing Parliament's intention that the various powers, duties and functions assigned to

different actors be exercised by the named recipient independently. Despite the fact

that most of the authorities were assigned to public servants working inside theDepartment of Manpower and Immigration, those people were intended to operate

separately from the other named actors, and even separately from their presiding

minister. The immigration officers, for example, had their own jobs to do and their

own statutory powers to exercise. Their decisions were not taken on behalf of theminister but in their own names, nor did the scheme subject those decisions to the

approval or oversight of any higher authority. The officers did not exist anonymous-

ly, with no functions beyond that of simply providing the hands and feet of an empow-

ered minister. Rather, they had a recognized mandate of their own and a statutorypersonality. The situation was thus distinct, in important ways, from the classic,constitution-based civil servant-minister relationship described in Caritona.

The Court's approach in Raraviadmay be contrasted with that of the House

of Lords in the more recent case of aladrindeY Like Raniad, Gladdiinde was an

immigration case, and like the Canadian Iniigration Act, the United Kingdom statute

assigned, in quite detailed fashion, certain functions to the minister in charge of theHome Department (the Secretary of State), and other functions to immigration offi-

cers and named officials. In particular, the Act provided that the power to deport was

to be exercised by the Secretary of State. The House of Lords nonetheless held that

an immigration officer could exercise that authority in the appellants' case.

The House of Lords based its conclusion in Oadehinde on various factors,some of which were structural. The argument had been presented that, because

immigration officers were independently empowered by statute, they were holders

of a statutory office, and as such were "independent of the executive arm of govern-

ment" and unable to exercise powers devolved from the executive. The Law Lords didnot accept this submission, noting that immigration officers had always been civil ser-

vants since their inception in 1905. The current legislation nowhere contained any

provision for management of an immigration service "or the structure of such a serv-ice", which was "only explicable in terms that it was recognised that it had evolved as

46. Iid. at 382. See also Can jixl v. ni'towSenices (1978) Ltd. (1983), 43 B.C.L.R. 231,4 C.C.C. (3d) 375(S.C.).

47. Clfachinde, supra note 35.

514 OTTAWA LAW REVIEW REVUE DE OROIT D'OTTAWA39:3 39:3

part of the Home Office."4 Structurally, therefore, despite their independently con-

ferred powers, immigration officers were within the minister's department. While

not mentioned by the court in Oadehinde, this fact arguably rendered the officers sub-

ject to government policy in their decision-making-a form of indirect control, even

in the exercise of their own discretionary powers.49

However, the court did not solely rely on structure and presumed or indirect

control. The judgment went on to note that the immigration officers, in making

deportation decisions, were subject to the actual control of their superiors: "in any

event their decisions are reviewed in the deportation department before the order is

signed by the Secretary of State.""

Finally, the provisions of the statute assisted the House of Lords in determin-

ing that no implied contrary intention to devolution should be attributed to

Parliament in this case. The Law Lords pointed to three places where the statute

expressly required an approval or direction to be given by the Secretary of State (andnot by a person acting under his authority). Having found three such explicit limita-

tions on the Secretary of State's power to devolve his authority, they refused to rec-

ognize any implied limits.5

In Rarmwid and a1addi'nde, the courts looked long and hard at legislation

which assigned certain powers to a minister but also confided certain discretionary

and important decisions to the holders of named civil service offices in the minister's

department. One court determined that this represented Parliament's intent that

each power-holder under that scheme should perform his or her own functions, and

that none should act as the alter ego of another. The other court came to the opposite

conclusion, emphasizing that, empowered or not, the power-holders (immigrationofficers) served, and were subject to supervision, within the structure of the depart-

ment (Home Office). Both judgments can be seen to be concerned with the relative

degree of autonomy under which the minister's subordinates operated day-to-day.

Both are therefore examples of the importance of control to devolution theory.The question of whether the deciding officer was located "in the department"

returned when the English courts considered another model for the exercise of min-

isterial authority-this time by the chief executive of a "next steps" agency. R. v.

Sexretary of State for Soial Services, Ex parte Shoin concerned the exercise of theSecretary of State's decision to direct that a social security benefit be suspended

48. Ibid. at 302,49. See WMnpey W~Aom Ltd. et a]. v. 1fructcrdlStandars et al. (1984), 49 A.R. 360 at 360-368, 2 D.L.R. (4th)

309 (Alta. C.A.) I 14irrpev W4tcrn cited to A.R.l; P, v. Awn, Exparte IpecAir ltLtd(1965), 113 C.L.R.177, 119651A.L.R. 1167 (H.C.); ALwtt Tmrtaiirt Indu strie(C atkros) FlyLtdv. 7he Canmmmuwth df/ustraliaand t/m (1977), 17 Aus. L.R. 513 at 536-37, 540 and 563-64, (1977) 139 C.L.R. 54 (H.C.) [AttestTratport cited to Aus. L. R.I.

50. Claddinc, .qra note 35 at 303.5 1. Ibid


pending an appeal of the benefit award.5 That decision was made by Mr. Ash, an

employee of the Benefits Agency, which was described by the Court of Appeal as "an

"Executive Agency" of the Department of Social Security." 3 In English public man-

agement language, the Benefits Agency was a "next steps" agency, which meant that

it remained"part of the parent department, but under a'framework document' nego-

tiated with the parent department it is given a chief executive, a budget, a designat-

ed staff and a set of performance targets of its own."51 In this case, the framework

document specified that the chief executive, appointed by the Secretary of State, was

to manage the agency, and contained the statement that the Secretary of State "dele-

gates to him responsibility for its functions and its performance in providing the serv-

ices in Section 3 above."5 It also set out some specifics about the relationship of the

chief executive to the Permanent Secretary who headed the department, including

that the chief executive was to have personal access to the Secretary of State, and the

occasions on which the chief executive was required to consult the Permanent

Secretary and vice versa.

Academics have raised questions about the extent to which next steps agen-

cies break the link in the chain of responsibility of ministers to Parliament. -56 Indeed,

some have commented that it is questionable to what extent the Caritona doctrine can

be said to support the exercise of ministerial powers by agency employees. The prac-

tice around next step agencies, it is said, "tends to create a situation in which, if the

relationship between the agency and the parent department is working in the way

that it is meant and intended to work, the decision-makers and decision-making at

agency level cannot be seen as part of an integrated departmental structure, a depart-

mental unity, such as the non-delegation/ Carltona doctrine essentially demands.""

This was the line of argument put forward in Shemin. It was submitted that

the agency constituted a separate "arm of [the] Government" and that, consequently,

"there was another party taking part in the decision-making processes ... .

In a decision similar to Giaddzinde, the court in Shrviin focussed on the fact

that the agency was itself within the Department of Social Services. The Court of

52. (1996), EWCA Civ 524 Eng. (C.A.), aff'g (1996), EWJ No. 5064, 32 B.M.L.R. I (Q.B.D.) (QL) [Shavin].

53. Shcnsin (C.A.), Aid. at para. 4.54. Adam Tomkins, PiblicLaw(Oxford: Oxford University Press, 2003) at 75.The model is not too different

from the Canadian experience with "Special Operating Agencies." See Canada,Treasury Board of CanadaSecretariat, Beainga Spodal prmating Agunty (Ottawa: Treasury Board of Canada Secretariat, 1998) online:<http: / /www.tbs-sct.gc.ca/pubs-pol/opepubs/TBB4/bsoa-doss-e.asp>.

55. Shervin (C.A.), sqwa note 52 at para. 11.56. Tomkins, supra note 54 at chapter 5.57. Mark Freedland, "The Rule Against Delegation and the Carltona Doctrine in an Agency Context" (1996)

P.L. 19 at 29.

58. Sha-in (C.A.), :Aqpa note 52 at para. 8.


Appeal quoted from the judgment of Latham J. on this point from the Court of

Queen's Bench. Discussing the references in the framework document regarding

agency personnel exercising powers "delegated" to them by the Secretary of State,

Latham J. had written:

The use of the word 'delegate' was perhaps unfortunate. But it has to be read in context.

The intention was to ensure that the administration of benefits was located within a

structure which, so far as possible, was a recognisable administrative entity with lines of

managerial responsibility intended to make it effective. That did not affect the constitu-

tional position when, in accordance with the guidance which I have set out above, Mr Ash

exercised the Secretary of State's power under reg 37. That power was exercised by Mr

Ash as a civil servant within the Department of Social Security on the authority of the

Secretary of State, in circumstances where the Secretary of State was answerable to

Parliament.)9

Justice Latham referred to the "Code of Appeals Procedure" as "guidance,"

which Mr. Ash had apparently considered when making his decision. The judgment of

Latham J. also referred to another passage of the framework agreement for the

Benefits Agency which provided that the agency was to administer the programs

specified in the agreement "in accordance with the law and any directions from the

Secretary of State .... The Agency acts in accordance with policy guidance issued on

behalf of the Secretary of State ... "60

Seen in this light, the outcome in the Sher,4n decision is as much about the

capacity of the minister to actually exercise some control over the agency's decisions

as it is about the technical point of the agency being located inside the minister's

department, In other words, the Carltcna doctrine could operate because Mr. Ash, as

an Agency employee was, at least to some extent, "under the authority of the minis-

ter."The same could not be said for Mr. Comins in his role as Secretary of the Tribunal

in Woollett, despite the fact that he was, during the whole time, actually employed in

the minister's department. 61 What seems to be important here is that the decision-

maker, in making his or her decisions, be subject to the policy influence of the min-

ister. This seems to be possible even in situations where the minister is removed from

the management and direction of the operations of the institution in which the

decision-maker serves.

2. Is the Por- Holder Ansvilae?

The Newfoundland Court of Appeal conducted a lengthy examination of devolution

doctrine in its decision in NDT Vnre. Relying on authorities like Mr. Molot and

Professor Willis, the judges summed up the issue as being an examination into

59. Shc'min (Q.B.D.), supra note 52 at 1I.60. Ibid. at 10.61. W rtt, suzpa note 7at 13.


"whether the minister was intended to answer vicariously to the Legislature for an

official's discharge of his or her functions .... "62 The court made it clear that, in so

defining the issue, it was tying devolution doctrine to the "individual responsibility of

Ministers," rather than to the collective responsibility shared by the whole cabinet."'

This reasoning was similar to that in Jacksan Stansfeld, where what the court called

"inter-departmental arrangements," whereby one minister or that minister's officials

exercised the powers of another minister, were considered unacceptable. While each

minister shares collective responsibility for the actions of officials in other depart-

ments, those actions form no part of his or her individual ministerial responsibility

for the actions of his or her officials. 4

The language used in some of these cases suggests that a minister's responsi-

bility to answer for the actions of those on whom his or her power is devolved needs

to be quite personal and specific in nature. The court in Claddiindesaid that the deci-

sion had to be taken by a person "for whom the Home Secretary accepts responsibil-ity."65 In Shcrvin, the Queen's Bench used the same words, which were interpreted by

the Court of Appeal as stating: "the buck stops with the Minister and if the buck stops

with the Minister he is the person who is accountable to Parliament and responsible

for the Agency."66

While these words sound quite categorical, the "next steps" model consid-

ered in Sheriin illustrates that accountability for particular actions of a decision-

maker can exist even where the management and direction of the institution is

assigned elsewhere. The conclusion in Shewin, while no doubt comforting to offi-

cials and lawyers advising the Secretary of State, provides an interesting contrast

with the description of the relationship between ministers and these executive agen-

cies in other contexts. Tomkins, in Public Law, points to the example of the actions

of the Home Secretary, Michael Howard, following the publication of the Learmont

report.f7 The report was the result of an inquiry into prison security and the Prison

Service, which is a next steps agency within the Home Office. The report was very

critical of both the operations and the management structure of the Prison Service. 61

When the opposition called for the resignation of the Secretary of State, Mr.

Howard responded by firing the chief executive of the Prison Service. In explaining

his actions, he stated that as the Secretary of State, he was responsible only for pol-

62. NDT Ventues, supra note 10 at para. 66.

63. Ibid. at paras. 68-69.

64. Jadson Starnsfidd supra note 38 at 565.

65. Gladduiinde, supra note 35 at 300.

66. Shoain (C.A.), st"ra note 52 at para 15.

67. Tomkins, supra note 54 at 150-54.

68. U.K. Home Office, ResiewofPrisn SiccSmaitv in Enland and Mlles and the Esmp fitrn Rrkhurst Pison on

Tuesday 3"Januay 1995 by General Sir John Learmont (London: Her Majesty's Stationery Office, 1995).


icy. The framework document of the Prison Service made the chief executive-not

the Secretary of State-the person responsible for the operation of the Service,

which was what the report had criticized. 69

The exercise of discrete ministerial decision-making authority, such as the

power to suspend benefits pending an appeal, is typically connected with the opera-

tional side of a government program, not the making of policy. If the next steps

framework agreements divide responsibility between the agency or chief executive

and the minister in the way suggested by Mr. Howard, then it would appear there is

some question about the responsible minister "accepting responsibility" for the

actions of agency employees, as found by the Court of Appeal in Sherin. At the very

least, there would appear to be some distinctions in the type and degree of ministe-

rial accountability for the "agency" portions of his department.

What is key, according to the court in Lavender, is that "where a Minister is

entrusted by Parliament with the decision of any particular case he must keep that

actual decision in the last resort in his own hands.'" ' In other words, the situation

must be one in which the minister continues to "own" the decision, so that it is clear

that the responsibility to answer for that decision is his or hers alone.

Where the structure in which the decision-making takes place is set out in leg-

islation, an inquiry into responsibility is an exercise in statutory interpretation. Thus,

in Hartison, the words "lawful deputy" in the Crinal Code, referring to the person

who could exercise powers belonging to the Attorney General, were not interpreted

as meaning only the "Deputy Attorney General."71 Applying Carota as well as the

statutory context, the Supreme Court of Canada concluded that "[the] words com-

prehend all persons appointed to act on behalf of the Attorney General when acting

within the scope of their authority."72

On the other hand, Parliament can indicate a preference for assigning own-

ership, and therefore answerability, for decisions among a variety of actors, of

whom the minister is just one. For example, in Ramvvad, we saw that the Supreme

Court found such an intention in a legislative framework that attributed certain

decisions to named decision-makers within the departmental structure. The Court

concluded that:

Indeed, in the Act and in the Regulations, the most important functions have beenreserved for the Minister's discretion while authority in other areas have been delegateddirectly to specified officials.

69. Tomkins, sup note 54 at 15 1.70. Lamd'fr, supa note 38 at 1240.

71. Hanison, AipM note 34 at 246.72. Hid


The general framework of the Act and of the Regulations is clear evidence of the intent

of Parliament and of the Governor in Council that the discretionary power entrusted to

the Minister be exercised by him rather than by his officials acting under the authority of

an implied delegation, subject of course to any statutory provision to the contrary.

In this case, there was no arrangement removing the employees in question

from control of the minister. No special framework agreement had been created

entrusting the management and direction of the immigration officers to another

authority. The difficulty was not one of institutional control. Instead, the Court

focussed on the fact that the persons who could have exercised the minister's pow-

ers for him or her had their own jobs to do-jobs conferred on their offices

expressly by Parliament.

This could have meant two things. From a statutory interpretation perspec-

tive, it may have meant that the functions left to the minister were not as "multifari-

ous" as in other cases, and therefore it was not beyond his capacity to perform them

personally. The Court did not mention that point, but instead concluded that

Parliament, the body to whom the minister was responsible, had intervened to indi-

cate how the powers it had conferred in this statute were to be exercised and, by

extension, how the minister was going to be held accountable for the exercise of that

power. In this instance there would be no alte egos. The minister would personally

perform his or her own duties, and be accountable accordingly (and very complete-

ly). The rest would be performed by others within his department, through actions

for which the minister would have institutional and policy accountability. However,

those acts would not be "his" or "her" acts for accountability purposes.

Where the structure is not statutory, but administrative, the courts have

shown that they will examine the policy documents and "agreements" through which

governments regulate themselves from the inside. The Sheivin decisions quoted from

portions of the framework document concerning the Benefits Agency. They included

the mechanisms by which, despite the new governance structure developed for the

agency, the Secretary of State would retain access to the information needed to sup-

port his or her responsibility to Parliament. 71 One example was the provision requir-

ing the chief executive of the agency to "provide the Secretary of State with any

information on matters relating to his responsibility needed to answer a

Parliamentary Question or necessary for other Parliamentary business."75 These pro-

visions indicated that the Secretary of State remained fully capable of answering in

Parliament for the agency, and therefore for any actions it undertook on the

Secretary's behalf.

73. Ran"ad spa note 44 at 381-82.

74. Sh n, supra note 52.

75. Shemin (C.A.), ibid at para. 12.


B. The Exercise of Non-Ministerial Powers

1. Is the Povwr-Holder in Charge?

The cases which discuss the use of powers conferred on officials other than ministers

seem to be more likely to focus on the question of control than the question of

answerability. In Ahrmd v. Public Service (rmission, the issue was whether the Director

of the Personnel Administration Branch of a government department could recom-

mend the release of an employee.76 Under the Public Service Enploynmt Act, such a

recommendation was to be made by the deputy head (in this case the deputy minis-ter) of the department. While the statute did contain an authority to delegate, the

court did not rely on this to validate the recommendation. Instead, it simply found

that "this opinion was not one that required personal attention from the deputy head

and was validly formed by appropriate departmental officials on the basis of the prin-

ciples applied in such cases as Car/tona, Ltd. v. Cars. of Wks."T'

After noting that it "would be quite impossible for the deputy head of a large

modern government department to give personal attention to all such matters,"

Jackett C.J. concluded that:

Il1n my view, there is a necessary implication, in the absence of something expressly orimplicitly to the contrary, that ministers' powers, and deputy ministers' powers, are

exercised on their behalf by their departmental organizations as long as they are of anadministrative character. To what extent officials are allowed or required to do so in par-ticular cases is a matter of internal arrangement and outsiders have no status to questionthe authority of an official in a particular case.

79

The court in Ahrmd thus simply lumped deputy ministers in with ministers

and concluded that their powers could be "exercised on their behalf by their depart-

mental organizations . . .,,"

The Ahrmd case was characterized by Ryan J. in Canadian Bronze Col. Ltd. v.

Deputy Mnistcr of National Revenue as positing a "presumption that the acts which the

deputy minister is authorized to perform may be performed, not only by him in per-

son, but also by responsible officials in his department."' In that case, the Federal

Court of Appeal refused to allow a deputy minister's power to redetermine the tar-

iff classification of goods to be exercised by a director in his department. As in

Rarmviad, the main reason relied on by the Court was the detailed nature of the

76. 119741 2 F.C. 644 (C.A.), 51 D.L.R. (3d) 470 [Ahmidted to F.C.].

77. 1id at 645.78. bid. at 650-51.79. Ibid. at 651.80. Ibid.81. (1985), I F.C. 481 at 497-98, 57 NR 338 (F.C.A.) [Cradan Brtmecited to F.C.I.


scheme set out in the statute and the role it prescribed for actors at each level of the

hierarchy, culminating in the deputy minister's redetermination power. The Court

concluded that at the final stage of the tariff determination process the importer "is

entitled to have his request considered by the Deputy Minster himself ...."-2

However, the Court was divided on the question of whether Ahmidwould otherwise

have provided authority for the director to act on behalf of the deputy minister,

through the operation of the Caritona doctrine. Justice Ryan, who wrote the main

judgment, thought it would have. 3 His colleague Heald J. was clearly in opposition

on that point, as seen in his brief concurring reasons (though chiefly on the basis that

the treatment of the doctrine in Ahrmd was obiter dcta).S" Finally, Mahoney J. pre-

ferred "to express no settled opinion" on the application of the doctrine, referring to

the uniqueness of "a minister's constitutional responsibility for what is done by any-

one for whom he is answerable to Parliament."-"

Whatever the misgivings of some of the Canadian Bronze judges, courts else-

where have been more willing to extend the doctrine, even to institutions which have

neither a minister nor a deputy minister. In O'Rflly v. State Bank of ictciia, a case

concerning the issuance of notices under the Inosur TaxrAsss t Act, the Australian

High Court considered the validity of notices issued not by the Commissioner of

Taxation or his delegate, but by a chief investigation officer.?6 The legislation con-

ferred the power to issue the notices on the commissioner and provided authority to

delegate, which had been exercised, but only in favour of the deputy commissioner.

There was no authority to sub-delegate. In determining the validity of the notices,

the High Court displayed little hesitation in analogising the provision empowering

the commissioner to one which referred to a minister of the Crown. The court began

with the proposition that "[t]he answer to the question whether the statute requires

the power to be exercised personally by the person designated depends on the nature

of the power and all the other circumstances of the case"', and then moved on to con-

sider the Carltcva line of cases. The court distinguished these, in part, as dealing with

the constitutional responsibility of ministers. However, Gibbs C.J. maintained that

the cases "also rest on the recognition that the functions of a Minister are so multi-

farious that the business of government could not be carried on if he were required

to exercise all his powers personally."'- He added: "Ministers are not alone in that

82. Ibid. at 499.83. Iid. at 497-98.84. Ibd at 485.85. Ibid. at 486.86. OMikvlv. Coai em oscftheStateBankofVctoria (1983), 153 C.L.R. 1, 44A.L.R. 27 [Bankd cictcia cited

to C.L.R.I.87. Ihid. at I1.

88. Ibid.


position," citing an English judgment that would have applied devolution doctrine to

tax commissioners and an Australian decision that applied it to a university senate!8 9

In the result, the High Court applied the same reasoning to the powers of the

Commissioner of Taxation:

I can see no reason why, in construing sections of the Act which confer powers on the

Commissioner, it should not be proper to consider the undoubted fact that the

Commissioner could not possibly exercise all those powers personally.... [Tjhere exists,as the Parliament must have known, a practical necessity that the powers conferred on

the Commissioner by the Act should be exercised by the officers of his Department whowere acting as his authorized agents .... [TIhe powers conferred by s. 264 were notintended to be exercised only by the Commissioner or his delegate personally but may beexercised through a properly authorized officer.

90

In Bank of Victoria, the High Court described a situation in which duties of the

permanent head of a department are discharged through officers of that department.

The same language appears in the Canadian Federal Court of Appeal's decision in

Brooker v. Attorney General of Canada, which dealt with the power to appoint federal

public servants. 1 That responsibility was granted by statute "exclusively" to the three

commissioners who make up the Public Service Commission, an independent agency

intended to ensure neutrality and merit in staffIng. When considering whether the

commissioners have to personally make all selection decisions, the court stated that

the Public Service Commission could exercise its powers by using, as members of

selection boards, its own employees, persons engaged by contract or even a "knowl-

edgeable public servant in one of the various departments and agencies."12 Speaking

of the selection board members, the Court commented that the Commission "has not

authorized them to exercise or perform its powers, duties or functions but has used

them as an instrumentality by which it carries out its statutory functions." 93 The

notion of "using" someone else to perform a function, or discharging a function

"through" that person seems to imply a very close degree of control indeed.

One of the judges in the Bank c Vctoria case went on to describe the negative

effects of concluding that such a devolution was not possible, and that the statute's

wide power to delegate should have been relied on instead:

The opposing argument would oblige the Commissioner himself to delegate his powers,

not only to the Deputy Commissioners, but to a host of departmental officers through-

out Australia, rendering each of them a Commissioner in his own right. It would be

wholly destructive of any semblance of administrative order and efficiency.94

89. [lid., citing Ccrnissoa oCustoramandEisev. Cure&DedeyLtd. [19621 1 Q.B. 340,1196113 All E.R. 641and Exparteiaste Re LrmtyoSnnev(1963), 63 S.R. (N.S.W) 723 (C.A.).

90. Bank of ictcia, ibid. at 11-13.91. [19731 F.C. 327, 37 D.L.R. (3d) 287 IBrodarcited to F.C.].92. Ibid. at 331.

93. Iid at 332.94. Bank o" Victcnia, upra note 86 at 32.


This discussion picks up on the differences between formal delegation anddevolution, and implies that one advantage of the latter is a greater capacity for con-trol by the power-holder over the decisions taken in his or her name. In cases of for-

mal delegation, the authority of the delegate is derived from the instrument ofdelegation. While policies can be made to apply to the exercise of a delegated discre-tion, in theory, the delegate is in a similar position to the original recipient of thepower-there is a written text which confers his or her authority, which is to beinterpreted and applied. Further, the delegated decision is his or her own decision, as

there is a written indication that he or she is authorized to exercise the power in his

or her own name. Notionally, at least, this places a formal delegate in a position whichis less closely controlled by the power-holder than either an informal delegate or one

to whom power has been devolved."'The line between delegation and devolution becomes blurred when courts

resort to a theory of "implied delegation."This occurs in cases where the statute con-tains no express power to delegate and the court is reluctant to apply devolution doc-trine. A good example is the English Queen's Bench decision in Nehm v. Roe.9 6

The issue in Nelr was whether a notice requiring the defendant to give infor-mation as to the identity of a driver was valid when the notice was signed "on behalfof the Commissioner of the Police of the Metropolis" by a police inspector. The noticein question could only be issued "by or on behalf of a chief officer of police." "7 Noauthority to act on behalf of the commissioner had been conferred on the inspectorby the commissioner. However, he had been authorized to act for the commissionerby his own superior, the local Superintendent of Police. The question, therefore, waswhether the superintendent had the authority to act on behalf of the commissioner

to authorize the inspector to sign the notice.

Counsel for the prosecutor argued that "exactly the same principles ought tobe applied to the Commissioner of Metropolitan Police as apply in the case ofMinisters" and therefore the superintendent could act as the alter ego of the commis-

sioner in delegating the signing of notices.9"The court was not comfortable with that proposition. In particular, it reject-

ed the notion that the principle applies "whenever it is difficult or impracticable fora person to act himself, in other words that whenever he has to act through othersthe principle applies."' The court concluded that "Superintendent Williams, was, byreason of his position, not the alter ego of the commissioner."' 00

95. The distinction between delegation and devolution is explained in similar terms in LS v. Dirctor-Geneal orFACS (1990), 18 N.S.WL.R. 481 at 489, citing ReRdoalce under Orbudsmn Act, section 11; ExparteDrectr-Cenel otSodial Serv'ces (1979), 2 ALD 86. In the FACS case the provision of a power to delegate in thestatute was taken as sign of legislative intention that devolution doctrine should not operate.

96. Ndrs, supm note 8.97. [bid. at 6.

98. Ibd. at 8.

99. Ibid.

100. Ibid

524 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA

39:3 39:3

However, the judges did not leave matters there. They went on to find that,

while not the commissioner's alter ego, the superintendent had "implied delegated

authority ... from the commissioner." Specifically, the conclusion was that:

[llt would be proper to infer that the delegation which I find exists from the commission-

er to Superintendent Williams includes power for him to get a person in his unit in a

responsible position, in this case Inspector Hicks, to deal with the matter, in other words

I think the proper inference to be drawn from the facts here is that the further delegation

to Inspector Hicks was one which was done with the implied authority of the commis-

sioner, the original delegator. 10!

In the result, the authorization from the superintendent to the inspector was

upheld, as was the notice signed by the inspector. The decision contains no addition-

al analysis on this point, nor any description of the distinction the court drawsbetween the capacity of "alter egd' and "implied delegated authority." Commentators

have noted that the outcome in Nelnw is indistinguishable from what it would have

been had the Carltona principle itself been applied.' 02

In contrast with the Bank d Vctoria decision, there is no suggestion in Nelrm

that the Court of Queen's Bench feared that this implied jurisdiction would render

the superintendent "a Commissioner in his own right.""" What seems to be the key

difference here is that the police commissioner's power to delegate was only implied,

and was implied in the case of the superintendent "by reason of his position." The

superintendent then was also found to have implied authority to further delegate the

authority to sign the request for information at issue to an inspector "in his unit.""If the authority to exercise the commissioner's power is derived from the subordinate

positions of the superintendent and the inspector, then they would clearly have to actin that capacity in carrying out the delegated function-they would be subject to the

supervision and policy control of their superiors. This makes the situation virtuallyidentical to that of devolution.

It was in part the similarity between devolution and an implied power to del-

egate that recently led the English Court of Queen's Bench to decline to follow the

decision in Nen and to allow a chief constable to devolve his functions to a police

officer under his jurisdiction. In upholding the validity of the officer's actions, thecourt relied expressly on Carltoia. Unlike some of the other decisions that apply the

101. Ibid. at 8-9.102. David Lanham, "Delegation and the Alter Ego Principle" (1984) 100 L.Q.R. 587 at 607.The same concept

of an "implied authority to delegate" was employed by the Supreme Court of Canada seven years later in thecase of Harriso, supra note 34. In that case as well, the outcome of the analysis was the same as if the courthad found a devolution of authority. The difference from Nerys was that the Canadian court cited and pur-ported to rely on Critona, rather than distinguishing it.

103. Bank dVlacria, supra note 86 at 32.

104. Ndns, sipra note 8 at 8-9.


doctrine to contexts other than the minister-civil servant relationship, the judgmentin Oid' Cstable ol the West M dlands Police, R v. Cnzales does not limit itself to thesimple observation that chief constables have almost as much to do as ministers." 5

Instead, Lord Justice Sedley dealt at some length with the reasons for which he saw

the doctrine as applying more broadly:

Although the arltcna case is frequently cited as a source of the "alter ego" doctrine, it

can be seen that Lord Greene's reasoning is not predicated on this. It is predicated on the

proposition that the departmental head is responsible for things done under his authority.

The relevance of the alter ego doctrine is that Crown servants were at that time taken in

law to hold their positions by grace and not by contract, so that the minister was first

among equals, not an employer with servants or a principal with agents. His implied

power to delegate functions depended, therefore, on two things: the conferment of a

power in terms which implicitly permitted their delegation and the existence of persons

to whom he could delegate them without parting with ultimate responsibility.

A Chief Constable similarly is not the employer of the off!cers under his or her command

but is legally answerable for them. The Caritona principle appears to apply readily in such

a situation .... 1(16

Lord Justice Sedley attributed the basis of the Cartaa decision to two factors:

statutory terms that imply permission to delegate, and the existence of persons to

whom there can be delegation without change in the locus of ultimate responsibility.

However, it appears from the rest of the judgment that the latter was the moreimportant of the two. The Lord Justice was, of course, forced to deal with the deci-sion in NdmIs, which expressly rejected the notion that Carltona could be applied to a

police commissioner. 1" He did so first, by pointing out that the result in Nehrm wasthe same as though the doctrine had been applied. However, he took issue with the

Nerms court's reliance on "implied delegation and sub-delegation" instead of devolu-

tion theory to reach that result:

As has been seen, the Cariona principle, which binds this court, does not depend upon

the peculiar status of civil servants as the alter ego of their minister. It is sufficiently

ample to allow a Chief Constable to discharge functions of the kind we are concerned

with through an officer for whom he or she is answerable. To fall back instead on implied

delegation and sub-delegation is capable of appearing to be a ratification by the court of

an accomplished fact and to beg the question of power to delegate. '0

105. OidGsmableof the "Est Adfands Pdiat, R. (cn theapplicatim ot) v. Gonzales & Os, 120021 EWHC 1087,[20021 All E.R. (D) 502 (May) [Wl & dcandsfMicecited to All E.RI.

106. Ibid. at paras. 9-10.

107. Ndrn, supra note 8 at 8.108. Wst' Mdands FPoic, supra note 105 at para.12.


Lord Justice Sedley took as his academic source for the doctrine the relevant

passage from De Smith, Woolf and Jowell, Judicial Review &t Adninistrative Action,which states that where statutory powers are entrusted "to a named officer"-includ-

ing, for example, a chief officer of police-another officer cannot exercise them. 109

The Lord Justice felt that statement was overbroad, and differentiated between the

various "named officers," used as examples in the de Smith text, on the basis of their

role in the relevant institutional hierarchy and the extent of their personal qualifica-

tions vis-A-vis the power in question:

For my part I can see good reason to differentiate, where Parliament has conferred pow-

ers on the holder of a named office, between those offices which are the apex of an

organisation itself composed of office-holders or otherwise hierarchically structured, and

those offices designated by Parliament because of the personal qualifications of the indi-

vidual holder. Thus, of the three examples given by De Smith, Woolf and Jowell, one can

readily infer that when Parliament confers functions on a chief officer of police, all but

the most important are likely to be delegable; whereas the likelihood is that powers con-

ferred on a medical officer of health or on a statutory inspector, each professionally qual-

ified as an individual, are to be exercised by the office-holder alone. This, with respect,

seems to me a better legal test than overriding administrative convenience, although it

may produce similar outcomes. 110

Inescapably, this language is about control. Professionals who are selected for

their individual qualifications and are expected to act independently are distinguish-

able from a police officer who heads an institution composed of other police offi-

cers.' "Chief constables are responsible for the direction and control of police

forces,"" so placing their authority in the hands of a member of that force is not the

same as "parting with ultimate responsibility" for the decision. "3

In other situations, the courts emphasize substantive, over institutional, con-

trol. A very recent instance is the Federal Court Trial Division's decision in Delisle v.

Canada (Attney Cnral),14 In that case, one of the issues was the validity of a letter

of authorization issued pursuant to the Food and Drug Regulations. The regulation

required that the letter of authorization be issued by the assistant deputy minister of

the relevant branch of Health Canada. It had instead been signed by the occupant of

109. Stanley Alexander de Smith, Jeffery Jowell & Lord Woolf, Judidal RetiewdctA&hinima tiveAicdn, 5' ed.(London: Sweet & Maxwell, 1998) at 366.

110. 4& MdlandsPio, supa note 105 at para. 14.III. Indeed, the Queen's Bench Division had already decided in WH. Snith Ltd. v. OnionjsticEs, 120011

E.H.L.R. 12, 120001 EWJ No. 6195, (Q.B.) that there could be no delegation of the powers of a Health andSafety Inspector to commence criminal proceedings.

112. Beryl Naunton, A TmeoLawand Oder (Chichester: Justice of the Peace, Ltd., 1970) at 116; and see theHome Office website, at online: <http://www.homeoffice.gov.uk/police/about/>.

113. WistMiandsoice, aYpa note I OSat para. 9.

114. 2006 FC 933, (2006) 298 F.T.R. I IDedisecited to F.T.R.I.


a position which the assistant deputy minister had indicated could sign any letters of

authorization under the pertinent regulation. The assistant deputy minister had no

legislated authority to delegate.

The judge in Deisle observed that the maxim delegatus nan potest deegare was

simply an interpretive rule. 5 He drew from the jurisprudence authority for a judge

to deduce, from the nature of the power in question and the context and spirit of theAct, an implicit authority to delegate or sub-delegate a discretionary power. The

judge then stated his opinion that the discretion to issue the letters had been validlydelegated. He emphasized the fact that, despite the larger team in the branch who

worked on the files in question, only the officers whose positions had been named in

the delegation from the assistant deputy minister had actually taken the decisions to

issue the letters. He also mentioned that the management of the program was subject

to written procedures ("Standard Operating Procedures").

Two aspects of the Delisledecision are interesting. First, despite the reliance

on Carltona jurisprudence, the judge in Delisle placed all of the justification for

upholding the letter at issue on the written delegation that had been executed by

the assistant deputy minister."' However, had the case really been based on the

common law theory of the devolution of authority, no written authorization wouldhave been necessary."I7 In Dedis/e, as in Nelins, the court upheld the letter using the

notion of "an implied power to delegate" which it deduced from the nature of the

power and the administrative context."' The focus of the reasoning was not the

statutory holder of the power, nor was there any explanation of how the conferral

of this particular statutory discretion necessarily implied the power to delegate.

Instead, the brief reasons referred to the structure of the hierarchy in which the

discretion was exercised and the relationship between the signatory and the person

on whom the power was conferred.

Second, emphasis was placed not only on the structure of the organization,

but on the fact that the decisions themselves were subject to some measure of over-

sight and control by means of written administrative procedures. 19 This is reminis-

cent of the policy control referred to by the Court of Queen's Bench in the Shcrliin

decision. 120 In that case, as noted above, the fact that the decision-maker was clearly

115. Iid at 41.

116. Ibid. at 42.117. Written instruments are sometimes produced within departments to record the devolution of powers, as

well. These are management tools and provide evidence to the courts of which officials are considered'appropriate" to exercise which powers. However, they are not legally necessary and the official's authoritycontinues to derive from his or her position and the common law, not the instrument.

118. Deis/e, sq note 114 at 41; Nelim, stpra note 8 at 8-9; see also Harrison, ssqra note 34 at 245.

119. Weisq ibid. at 42.

120. Shentin, .Afma note 52.


subject to "Departmental guidance" off-set the suggestion in the framework docu-

ment for the Benefits Agency that the agency's administration had been removed

from the control of the Secretary of State. The requirement to follow policies set by

the organization over which the power-holder presides is another indication that thedecision of the employee can be considered that of the power-holder.

2. Is the Povwr-Holder A mr le?

When we considered the answerability of ministers, it was reasonably clear to whom

a minister would answer and where that would happen: in Parliament. When thecourts speak of"answerability" in other contexts, the "where" and "to whom" is less

clear. In several decisions, what seems to be relied upon is a sort of extension of min-isterial accountability. Where ministers make up the body in question, despite the fact

that the power does not specifically name an individual minister, clearly we are notvery far from the classic Carttona model whereby officials in the department which

supports the body may exercise its powers. Thus, powers of the Treasury Board canbe exercised by officials in the Treasury Board Secretariat. 1-1

A step further removed would be a board whose president is a minister, but

whose other members are not. In Local Govmin-t Board v. Aridge a case which pre-dates Carltona by over 30 years, the House of Lords held that powers of the Local

Government Board could be exercised by employees of the board, such as inspectorsappointed under the Local Govarnmt Board Act, 1871.122 They based this conclusion

on the responsibility of the minister at the head of the board to Parliament. Thatresponsibility extended to "all that is done in his Department," in which, presumably,

were housed the inspectors appointed by the board. 2 However, the powers were not

conferred by the statute on the minister, but on the board over which he or shepresided. Nonetheless, since the minister was responsible for the board and itsemployees, he or she could be expected to answer for how the devolved powers had

been exercised.

In other cases, no minister is involved directly in the body on which the statuteconfers authority. Here, some of the courts who are prepared to consider devolution

in such circumstances lay emphasis on the fact that, ultimately, a minister is nonethe-

less responsible for the organization. In Rank of Victria, the High Court supported theview that the Deputy Commissioner of Taxation could devolve his or her powers to

members of the tax department in part because the commissioner, as the permanenthead of a department, was "accountable to the responsible Minister .... On this

121. See A nmoEstte v. The Quci, 119801 1 F.C. 269,119791 F.C.J. No. 157 (QL).122. 19151 A.C. 120 at 133, 11914-19151 All E.R. 1 [Adidgecited to A.C. I.

123. I d.

124. Bank orVictoria, .s-qa note 86 at 31.


basis, Wilson J. was comfortable that the logic of the principle was "equally persua-

sive in its application to the head of any large government department."125

This reasoning is reminiscent of that of the Federal Court of Appeal in Ahrmd,

in which the court simply included deputy ministers with ministers in the class of

persons to whom the devolution doctrine applied. 126 As noted elsewhere in thispaper, some of the judges who decided the Canadian Bronzecase were much less com-

fortable with the application of the theory to deputy ministers. 127 However, the

recent DWis/e decision, dealing with the powers of an assistant deputy minister ofHealth, is another example of devolution within the framework of a traditional

minister-led department.'2 1

Neither Ahnd nor DeLisle were as explicit as the decision in Bank of Wctotia

about the accountability of the power holder to the "responsible minister."2 -

However, we know two things about actions taken in departments over which a min-

ister presides. We know that the minister is answerable to Parliament for all the

actions of his or her department. We also know that deputy ministers have now beenmade "accountable before," and required to provide answers to, Parliamentary com-

mittees. It would appear, therefore, that the exercise of a deputy minister's authori-

ty by someone else in the same department is not an action for which no one would

be answerable-and in particular, answerable in Parliament.

However, what if there is no "responsible minister" for an organization? Or

what about cases in which the legislation or the common law dictates that the minis-

ter is to be kept at arm's length? Arguably, this notion of an indirect responsibility to

Parliament would not operate in such cases. It may have been on this basis that the

court in Nelrm so firmly rejected the application of devolution theory to the

Commissioner of Police (although Lord Parker did not specifically mention the lack

of any relationship between the police and a minister)."' ° However, the more recent

case dealing with the police, Wst Mdlands Police, predicates the application of the

doctrine on the responsibility of a "departmental head" for things done under his or

her authority, not on a minister's relationship with Parliament. Lord Justice Sedley

describes a chief constable as "legally answerable" for the officers under his or her

command.' Despite the use of the word "legally," in his reliance on Cartcua, Lord

Sedley is presumably referring to the same kind of "answerability" Lord Greene was

contemplating, namely, a democratic duty to answer to the people's representatives.

125. I id

126. Ahncd, ia note 76 at 651.

127. Canadian Bronze, Aa note 81 at 485-86.

128. Dise, supa note 114.

129. Bank J mctcria, squra note 86 at 12.

130. NdMoswprm note 8 at 8.

131. " '&MdlandsPio, .m note 105 at para. l0.


To whom would the chief constable be answerable? The answer appears to be

complicated. In the United Kingdom, for each of the regional police forces there is a"police authority" charged with the duty to "secure the maintenance of an efficient

and effective police force for its area."132 These "authorities," whose origins stretch

back a long way into British history, have now been somewhat standardized under the

Police Act 1996.113 They are, in general, committees composed of members of local

councils, magistrates and "independent members" who represent the community. The

police authority for the Metropolitan Police Force is larger, but follows the same

basic pattern. "I Chief constables are appointed by the police authorities, with the

approval of the Home Secretary. 3 The police authorities also have the power to dis-

miss chief constables and to establish the "policing plan" for each jurisdiction, to

which the chief constable must have regard. 136

Another method by which police forces are held accountable is the

Independent Police Complaints Commission, established by the Police Rdorm Act

2002. 17 This body investigates formal complaints against the police.

The Home Secretary has control over the funding and overall management of

police forces in the United Kingdom and can set annual priorities and codes of con-

duct, but may only intervene in the affairs of particular police forces in very limited

circumstances. Chief constables are responsible for the direction and control of their

police forces and are answerable to the police authorities for their efficiency. One of

the principles of governance of police remains that they are "an executive arm of the

law, not of the Government."13" This principle is reflected in the accountability struc-

ture described above.

Clearly, there are real impediments to saying that most chief constables are

answerable to a minister, and through a minister to Parliament. Their functions come

within the general responsibility of the Home Secretary, but the Secretary's powers

over them are limited. Whatever Lord Justice Sedley meant by saying the Chief

Constable is "legally answerable," therefore, he likely did not mean "answerable to

Parliament," even indirectly.

Does it do violence to devolution doctrine to apply it to an officer who is"answerable" to someone else and somewhere else than Parliament? To return to

Cartona for a moment, Lord Greene ended his famous paragraph with the admoni-

132. oiFeAa 1996, UK, c.16 s. 6(l) IfiiceAct 19961.

133. Ibid. at s.3-4, 6.134. See the website of the Metropolitan Police authority at <http://www.mpa.gov.uk/default.htm>.135. PblieAct 1996, supra note 132 at s.I I(I).

136. Ibid. at ss.8, 1I.137. Pice Recrm At 2002 (U.K.), c.30, s.9.138. Naunton, Apa note 112 at 86.


tion that if anyone was dissatisfied with how "important duties" of ministers were car-

ried out by departmental officials, "Parliament is the place where complaint must be

made against them."13 9 The notion of there being a "place" in which those affected by

decisions can bring their complaints is essential not just to the constitutional theory

underlying our system of government, but to modern notions of accountability in

general. It explains the popularity of advisory committees and citizens' round tables.

It is also likely the driving force behind more formal structures, such as representa-

tive "boards of management" in some government institutions and oversight bodies

that accept public complaints (such as the Public Complaints Commission of the

RCMP). Indeed, the longstanding tradition of local police authorities in the United

Kingdom seems to be a prescient precursor of these so-called modern forms of direct

citizen involvement in holding public authorities to account.

The question remains: if a public authority empowered by statute is "answer-

able" in one of these other "places," and if he or she can also exercise a significant

degree of control over those who would exercise his or her powers, are we really in

a completely different situation to that which Lord Greene described? The difficulty,of course, is that once we get beyond the well-defined context of Parliament, every-

thing becomes a question of degree. How answerable, in reality, is the empowered

official? How effective is the body to which he or she answers? How democratic is it?

How effectively will the official be able to, in fact, answer for the activities of his or

her subordinates? For ministers and Parliament, these factors are reasonably clear

(although arguably even there they are evolving). Other models would have to be

tested on a case-by-case basis. The last section of this paper will propose a framework

for the application of devolution theory to new and evolving government structures.

V. CONCLUSION: A SUGGESTED FRAMEWORK FOR APPLYING

DEVOLUTION THEORY

What conclusions can be distilled from this discussion of the Carttona caselaw?

First, it remains true that the exercise of powers by "statutory strangers" is an

extraordinary phenomenon-the maxim ddegatus non porest delgare continues to

apply as a principle of statutory interpretation. For it to be displaced as a presump-

tion, there must be something in the "language, scope or object of a particular . ..

scheme" that indicates a willingness on the part of the Legislature for a statutory

power to be exercised by someone not named in the statute. 4 0 The administrative

139. Caritoa, Aqpr note I at 563.140. Hareism, stpra note 34 at 245.

532 OTTAWA LAW REVIEW REVUE DE OROIT D'OTTAWA39:3 39:3

structure in which the power is exercised, together with constitutional principles andthe need for efficiency, all seem to be relevant features of the "particular scheme."

Second, courts have been wary of extending the application of "devolutiondoctrine" itself beyond the context in which it was first developed, namely, the exer-cise of ministers' powers by officials that serve in a department over which they pre-side, 14' in respect of functions that are "multifarious" or otherwise appropriate to beperformed "vicariously," rather than personally. When faced with other scenariosinvolving different institutional structures, the courts have adopted a variety of posi-tions. Some refuse to recognize the validity of subordinates acting for their superiors,but more judges end up validating the action in question-reaching the pragmaticresult either by finding a lawful devolution of power or an "implied power to dele-gate." Increasingly, however, the decisions seem to rely less on the technical distinc-tion (assuming there is one) between these two concepts. Instead, courts areprepared to extend devolution doctrine itself beyond its factual origins, and to dig forthe principles that inspired its development in order to do so.

Third, from the beginning, issues of control and accountability have beenessential factors in the application of the doctrine. These concepts that we considerto be quite modern were key to the original decision, where they were explained inthe constitutional context of a minister's responsibility to Parliament. Since then,both the control of the power-holder over the decision-maker, and the duty of thepower-holder to answer for the actions of the decision-maker, have been importantconsiderations when judges are asked to apply devolution theory in new settings.

Finally, in the years since Carltona was decided, the structure of governmentadministration has changed quite significantly. Statutory powers are increasingly con-ferred on actors other than ministers. A variety of government institutions have comeinto being, enjoying a variety of relationships with their "responsible" minister. Inaddition, notions of accountability, in terms of the relationship between the popula-tion and those who exercise statutory powers, have expanded and become more

complicated. Arguably, it is a concept that is no longer limited to the floor of theHouses of Parliament. Some courts seem prepared to adapt devolution to this chang-ing administrative environment. Some may not be.

141. This aspect of the doctrine has been codified in Canada in the Intuprem Act, R.S.C. 1985, c. 1-21 , ats.24(2)(d) as am. by S.C. 1992, c. I, s.89, which reads:

24. (2), Words directing or empowering a minister of the Crown to do an act or thing, regardless ofwhether the act or thing is administrative, legislative or judicial, or otherwise applying to that ministeras the holder of the office, include(d) notwithstanding paragraph (c), a person appointed to serve, in the department or ministry of stateover which the minister presides, in a capacity appropriate to the doing of the act or thing, or to thewords so applying.


The application of the doctrine in this new context requires an analysis that

respects the principles underlying the doctrine, while moving beyond the fact sce-

narios that pertained in the early cases. Thus, where there is no department whichsupports the minister, or where the officials who would provide that support are

somewhat removed from the minister's control, the original formula of "ministers'

powers, plus public servants, equals devolution" may not be sufficient. Other factorswill have to enter into the mix.

Similarly, where the powers are conferred elsewhere than on ministers, newvalues will have to be inserted into the formula, requiring an examination of each of

the actors on the scene. What does the Legislature intend when it confers authority

on a commissioner of police or a body like the Public Service Commission? Whathints can we glean not only from the nature of the powers conferred and the struc-

ture of the organization, but from other indicators, such as patterns of control and

accountability?

The summary that follows sets out some of the factors derived from review-ing the case law from the perspective employed in this paper. Where these conditions

pertain, the authorities indicate that the doctrine will likely be applied. The question

that this list begs is: what weight should be given to each factor? It is still possible, assome courts have indicated, that one determinant will override the others-such aswhether the power resides with a minister and is exercised by persons for whom he

or she has complete and "unequivocal" accountability to Parliament. However, as gov-

ernments evolve, it is also possible that the balance between the various elements ofthe analysis will become more even, in which case the following list might be a real-

istic guide for tracking the new course of devolution doctrine. It is presented as a

point of departure for such a discussion.

Ministers' powers

Is the minister in control?:

Could the decision-maker have been directed or selected by the

minister?

Is the decision-maker subject to the control of another minister?

Does the minister have policy control over the content of the decision?

Does the official serve in a department whose purpose is to support

the minister, or do the official and the department have their own

statutory responsibilities?

Is the minister answerable?

Are the decision and the decision-maker within the minister's individ-

ual responsibility to Parliament?

Does the minister keep the decision "in the last resort" in his or her

own hands?


Has the Legislature indicated that accountability for activity in the

department is to be divided up?

Does the minister have sufficient influence and information to effec-

tively answer for the organization?

Non-ministers' powers

Is the power-holder in control?

* Are there people "through whom" the power-holder can carry out his

or her functions?

Is the power-holder at the apex of an organization composed of hold-

ers of similar offices?Would reliance on express delegations be destructive of "administra-

tive order and efficiency" (i.e. is it important for devolution to take

place instead so that control over decision-making remains with the

power-holder?)Is the power-holder responsible for the direction and control of the

people taking the decision?

Are the decision-makers subject to "departmental guidance" or other

forms of policy control over the content of the decision?

Is the power-holder answerable?

Is the power-holder answerable (somewhere) for the actions of the

decision-maker?

Is there accountability to a minister (and "through" the minister, to

Parliament)?

Is there accountability to the public, through their representatives, by

another means?

Is that accountability adequate for purposes of devolution theory?

The discussion in this paper illustrates that the criteria for applying devolutiondoctrine have evolved over time. However, the changes are not, in the main, depar-

tures from the basic principles outlined in the Garltona case itself. Instead, what haschanged is the willingness of the courts to return to these principles, sometimes in

isolation from their original factual context. When that happens, the essential under-lying supports of the doctrine are exposed. What is revealed in this process is a con-

cern with what, in modern governance parlance, we would call "control and

accountability."Where there is sufficient control by the power-holder over those whowill exercise his or her power, and where it can be said that the power-holder remains

accountable for the decision, there the doctrine can be applied.


In practical terms, what would approaching the doctrine in this way mean for

those designing statutory decision-making regimes? If it is possible to create the con-

ditions for devolution to apply to the powers at issue, this would have many advan-

tages. As noted above, in contrast to express delegation, devolved decision-makingdoes not require written instruments of delegation, signed by the power-holder,

itemizing the powers to be delegated and naming all those who are to exercise the

power. Nor do such documents need to be produced when the devolved exercise of

authority is challenged. If there are changes in the organization, if the power is to be

exercised elsewhere, or if the named delegates change their titles, there are no writ-ten instruments to change when powers are devolved instead of delegated.

Furthermore, devolved decisions do not risk invalidation because of an administra-

tive error with respect to any of these matters.

In short, if it were possible to be reasonably sure that a statutory regime would

support the application of the doctrine, it would be preferable to rely on devolution,

rather than introducing an express delegation power. this is why express delegation

authority is rarely given to ministers. Where powers are conferred on an official who

serves at the apex of an organization and has the ability to direct or otherwise con-

trol the persons to whom the powers would be devolved, and if the power-holder is

made answerable for the actions of those persons, a policy decision might be taken to

consciously rely on an implied power in the power-holder to devolve his authority.

On the other hand, where these conditions are lacking, it will continue to be neces-

sary to make provision for express delegations.

The case law in this area should be monitored closely, as it continues to devel-

op, so that the availability of devolution and the corresponding need for a delegation

power can be assessed for each new regime. Where it is possible to rely on common

law devolution, each decision to do so will present an opportunity to advance the

evolution of the doctrine. In the final analysis, the application of the doctrine will

continue to be an attempt to juggle such disparate elements as legislative intent, con-

stitutional principle, administrative necessity and accountable government. Few areas

of the law bring these forces into contact to quite the same extent. The application of

devolution doctrine is thus likely to remain one of the most interesting aspects of the

law relating to government.


Documents

Carltona Revisited: Accountability and the ... - RDO \| OLR