December 22nd, 2014 by James Goudie KC

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, 11th ed., 259, and see also de Smith’s Judicial Review 7th 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.

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