In Noon v Matthews [2014] EWHC 4330 (Admin) the Divisional Court allowed an appeal by way of case stated of the Conservators of the River Cam about their ability to prosecute unlawful operators of punts on the River Cam. The Conservators were established in 1702 and have jurisdiction to make Byelaws over the River Cam. The River Manager of the Conservators, acting on instructions, brought prosecutions which were stayed by the District Judge as an unlawful delegation of power by the Conservators to their officers.

Beatson LJ considered the legislative scheme in the River Cam Navigation Act 1851 and the River Cam Conservancy Act 1922 and held both that it was inevitable the power of prosecution, in the circumstances of the Conservators, would be delegated to a senior officer and that it had, on the facts, been subject to appropriate oversight and control. The appeal was allowed and the case remitted to the Magistrates’ Court for the prosecutions to proceed.

The Judgment contains some interesting observations on delegation case law.

Beatson LJ (with whom Holroyde J agreed) said:-

“25.       There are no relevant decisions concerning the power of the Conservators to delegate their powers. Accordingly, guidance must be sought from the decisions of this and other courts in other contexts. The starting point is the principle that powers conferred by statute should be exercised by the person or authority on whom they are conferred, “even where [this] causes administrative inconvenience, except in cases where it may be reasonably inferred that the power was intended to be delegable”: Wade and Forsyth, Administrative Law, 11^th ed., 259, and see also de Smith’s Judicial Review 7^th ed, 5-148 ff.

26.        One can only assess how strict this principle is by examining the approach of the courts to the question whether statutory provisions impliedly authorise delegation. As in many areas, this is likely to vary according to the context and the nature of the power. There is a strong presumption against interpreting a grant of legislative power as empowering delegation. There is also a tendency to adopt a more restrictive approach to implied authority to delegate in the cases of the proceedings of courts and cases involving other “judicial” and “disciplinary” powers. A strict approach is also likely if the power is conferred on the holder of a public office because of the personal qualifications and experience that those who hold the office can be expected to have. Re Bell’s Application for Judicial Review [2000] NI 245, the decision relied on by the District Judge, is an example of a strict or restrictive approach. But where the exercise of the power in question is not final or conclusive, where the power is given to the head of an organisation which is itself hierarchically structured, and where the responsibilities of the person or body named in the statute are such that the court considers delegation is inevitable, a less strict approach is taken and authority to delegate is likely to be implied.”

Beatson LJ then considered Nelms v Roe [1970] 1 WLR 4, Provident Mutual Life Assurance Association v Derby City Council [1981] 1 WLR 173, R (Chief Constable of West Midlands Police) v Birmingham Justices [2002] EWHC 1087 (Admin) and especially DPP v Haw [2008] 1 WLR 379, and continued, at para 32, with respect to Bell’s case:-

“I consider that only limited assistance can be derived from that case. First, its context was very different to that of the present case. The Northern Ireland Health and Social Service Board was obliged under the relevant legislation to authorise the relocation of a pharmacy business if it was satisfied that it was a “minor relocation”, and had no power to authorise it if it was not a “minor relocation”. The Board delegated the power to decide whether to authorise the relocation of a pharmacy business to its Director of Pharmaceutical Services, who determined that Ms Bell’s application for authorisation was not a “minor relocation”. The delegation was to decide a question of the extent of the Board’s jurisdiction (see [2000] NI 245 at 258) which had an effect on Ms Bell’s ability to operate her pharmacy business lawfully. It was for that reason that Girvan J considered the matter delegated could not be characterised as a mere administrative matter.”

Beatson LJ continued:-

“33.       In the present case, the issue concerns a decision to bring a prosecution. While the decision to issue a summons is a judicial act, the decision to bring a prosecution is a matter for the prosecutor alone: … The decision has a practical effect but is subject to the control of the court, first, and generally fairly quickly, when it decides whether to issue a summons, and, if it does, in the conduct of the trial.

34.        Secondly, I note that Girvan J did not consider Nelms v Roe. In that case, although the failure to provide the information was a criminal offence, a far less strict approach was taken to the question of implied authority to delegate.

35.        Thirdly, and significantly, in the light of the decisions in Haw’scase and the Birmingham Justicescase, Girvan J’s formulation appears too wide. Although those cases involved important common law freedoms, indeed fundamental rights, this court took a different and less restrictive approach than that taken by Girvan J. Haw’scase involved freedom of expression and of assembly, freedoms which are regarded as important by the common law and are also fundamental rights protected by the European Convention of Human Rights. The Birmingham Justicescase involved a court order which, while a civil order, could have a significant effect on an individual’s freedom of movement.”

 With that summary of the authorities, Beatson LJ turned to the question of determining the extent of the implied power in the relevant legislation.  He said, at para 36:-           

“My starting point is that the Conservators are statutory officers at the apex of a hierarchical organisation consisting of other office-holders, referred to in the governing statutes and Byelaws. They are either elected members of the relevant local government areas or senior members of the University of Cambridge. On examining the Acts, while some of the functions referred to are specifically required to be carried out by named office-holders, in respect of other functions there is no such limitation, or the reference is only to the Conservators. …”

 “39.       In my judgment, a distinction must be made between the determination of policy on such matters and the operational execution of such policy. Notwithstanding the difficulties at the margin of locating the boundaries of these categories, I consider that the Conservators are not impliedly authorised to delegate broad policy on such matters. They can, in my judgment, however, delegate the implementation of such policies to officers who will have some discretion as to how, operationally, to execute the policy in question.

40.        Is there, however, a distinction between those powers and the power to prosecute because it is much easier to conclude that it is inevitable that works of construction and clearing were to be planned and undertaken by skilled workpeople rather than the Conservators, whereas the decision to prosecute is not something which it is inevitable that the Conservators must delegate, since they could make the decision themselves after taking legal advice? I do not consider that there is. The function of enforcing the many Byelaws issued by the Conservators and prosecuting those against whom there is evidence that they have breached them is undoubtedly an onerous and operational task. Decisions may need to be taken quickly. The Conservators meet quarterly … and there are obvious practical difficulties of a body comprised of individuals which represent other bodies which only meets quarterly conducting criminal prosecutions on a day-to-day basis. Accordingly, although the decision to prosecute is a serious one, some delegation to the most senior officer is, in my judgment, inevitable in the sense that word was used in Haw’s case. …”

“43.       I have concluded that the presumption of an implied power to delegate, which it is accepted applies in relation to certain of the Conservators’ functions, also applies to the institution of prosecutions. I consider that it is for the Conservators to set the general policy regarding prosecutions, but that, as far as individual prosecutions within such general policy are concerned, there is power in their senior officer, the River Manager, to make the operational decisions. In reaching this conclusion, I have taken account of the fact that the decision to institute a prosecution is not determinative of the rights and entitlements of those affected. The court has control in the sense of deciding whether to issue the summons and then in hearing the case. I have also taken account of the fact that to require the Conservators to act as a body in the case of each individual against whom a prosecution is being considered would not be practical since they conduct their business at quarterly meetings.

In Solar Century Holdings Ltd v Secretary of State for Energy and Climate Change [2014] EWHC 3677 (Admin) the submissions made for the Claimant included that (1) certain pre-legislative statements were admissible and in effect bound the Government, according to the principles laid down by Lord Steyn in R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38 at paragraph 6, (2) certain statements made by the Government were “clear and unequivocal” representations which gave rise to a legitimate expectation, and (3) the expectation could not be trumped or thwarted by any of the policy considerations advanced by the Government.  Green J rejected all these submissions.  The case concerned renewable energy sources by way of large scale “solar farms”, governed by the Electricity Act 1989, as amended by the Energy Act 2013, and whether the Government was bound to maintain a particular scheme in place until 2017.  Clear and repeated representations had been made to that effect, but they had always been qualified.

As to (1) above, Green J said, at paragraph 48: “If … the language of the enactment is clear and unequivocal and inconsistent with the pre-legislative material, then a court cannot assume that Parliament necessarily intended to translate into statutory form the will of the Executive”.  At paragraph 52, Green J stated the principles as follows:-

“i)         When construing an enactment, including the exercise of power under an enactment, it is relevant to identify the intention or purpose of the measure, i.e. the mischief to which it is     directed.

ii)         In all cases (save with regard to consolidating enactments) the purpose or mischief may be identified by the posing of questions …  such as: If the legislation has changed, what has changed? If there is a problem which had to be resolved, what was the problem? If there was a blemish in the legislation, what was that blemish? If there was an improvement which was sought to be achieved, what was that improvement?

iii)         To identify the purpose or mischief and to answer these questions it is permissible to examine Explanatory Notes, White and Green Papers, Ministerial statements … and Law Commission Reports, all of which may be admissible forms of evidence.

iv)         However, not all such admissible sources are of equal weight. Those sources (such as Explanatory Notes) whose “shape” was closely connected to the “shape of the proposed legislation” may be more informative as guides (Westminster City Council) than other sources which are more remote from the final language selected by Parliament.

v)          In addition, a court may draw inferences from the statutory words actually used in the scheme of the legislation as a whole and from any case law on the underlying subject matter and a court might ask whether it may be inferred that Parliament intended to act consistently with the standard set out in case law … .

vi)         Material that is admissible will reflect the views of their authors. And the views of authors, including the Government of the day, do not necessarily reflect the will of Parliament (Westminster City Council). If there is an inconsistency between the statutory language and the pre-legislative, admissible, material it cannot, without more, therefore be assumed that the statutory purpose must reflect the purpose set out in pre-existing admissible material.

vii)        However, if there is a collision between a literal interpretation of an enactment and the contextual material with the consequence that the literal interpretation “is manifestly contrary to the intention which one may readily impute to Parliament, when having regard to the historical context and the mischief…“, then the enactment should be construed in the light of the purpose as evident from the historical context and mischief…”.

As to (2) above, Green J said, at paragraph 72-76:-

“72.      When what is objected to is the abrogation of a policy or a change of policy the starting point is that once a policy is promulgated and said to be settled there needs to be a rational ground for terminating it … But there is no presumption that policy cannot change; on the contrary it plainly can do so and frequently does. So the issue become whether there can be identified a representation of sufficient certitude that the policy will not be changed regardless of surrounding circumstances. As to this a representation that a policy will continue until a specified date is not the same as a promise that it will never be changed even if circumstances change. If it were otherwise then an intention to pursue a policy for a fixed period would become set in stone and permanently unyielding to changes in relevant circumstances however compelling they might be.

73.       And even if a sufficiently certain promise or representation has been made that a policy will continue in force and not be changed until a fixed date there is always a balance still to be struck between the retention of that policy and the strength of the (ex hypothesi) rational grounds which have arisen and which now are said by the Government to necessitate a frustration of that prior representation or promise. The test laid down by the Courts is whether the change of policy and the concomitant thwarting of the prior expectation amount to an abuse of power….”

“76.      …recognising that policy can change there is still a duty on the decision maker to weigh up the competing interests. There is no unfettered right to change policy (even for good reason) without putting those good reasons into the melting pot with the other countervailing reasons favouring retention of the policy and forming a rounded assessment of where the balance lies: …”

As to (3) above, Green J said, at paragraph 90:-

“… I consider that even if there were a legitimate expectation which arose it was amply offset by the powerful public interest considerations on the other side of the equation and the frustration of that expectation is not, nor comes close to being, an abuse of power.”