4 Requirements of the Regulatory Reform
Act
9. We noted that the proposal for an Order was laid
before the House with an explanatory memorandum by the Forestry
Commissioners stating that they acted on behalf of the Secretary
of State for Environment, Food and Rural Affairs. Similarly,
we noted that the consultation document on the proposal, which
was published on 14 February 2005, describes itself as being published
"by the Forestry Commission on behalf of the Secretary of
State for Environment, Food and Rural Affairs and in accordance
with the Regulatory Reform Act 2001". Section 5 of that
Act requires that, before any Minister makes an Order under the
Act, "he shall consult such organisations as appear to him
to be representative of interests affected by his proposals".
The Minister is further required to carry out additional consultations
where he regards it as appropriate to vary the proposal as a result
of the views expressed by the initial consultees, and a statutory
discretion is established at this point in the Order-making process
which only the Minister making the Order is empowered to exercise.
It was therefore unclear to us how the Commissioners could apparently
consider they had a power under the Regulatory Reform Act to act
on behalf of the Secretary of State in relation to carrying our
preliminary consultation and, if they had done so, forming the
views required to be taken before a proposal for an Order could
be laid before the House.[1]
We asked the Commissioners to explain.[2]
10. In their response, the Commissioners indicated
that the Minister with responsibility for forestry matters had
at each stage personally approved the actions of the Commissioners
in preparing for the laying of the proposal for an Order, including
the issuing of the consultation documents and the decision that
the proposal should proceed unchanged in the light of views expressed
by the consultees.[3]
It was their view (and presumably that of the Minister) that,
in this context, "As long as the Minister exercises any discretion
associated with [the various] statutory functions, he may require
any other person to implement his decisions on his behalf".
We accept the validity of this approach.
11. In light of the requirements of the Regulatory
Reform Act that Ministers must themselves perform various specified
actions before they make any Regulatory Reform Order, we recommend
that where an agent other than Ministerial civil servants gives
effect to the relevant Ministerial decisions, that the explanatory
statement should explicitly confirm that the Minister has performed
those actions required of him before presenting his proposals
to Parliament.[4]
1 The duty of the Commissioners to act in accordance
with directions under section 1(4) to (6) of the Forestry Act
1967 were not immediately reconcilable with their statement. They
are not part of the Department for Environment, Food and Rural
Affairs, and furthermore in presenting this proposal to Parliament
they were not clearly acting under that 1967 Act. Back
2
See Annex A, Question 1. The Carltona Doctrine is the principle
of administrative law which establishes that departmental civil
servants are the effective alter ego of their Minister when carrying
duties which legislation imposes on that Minister. Mr Justice
Sedley (Administrative Law and Government Action, Oxford
University Press, 1994) described the doctrine thus: "...Ministers
have historically relied on their Civil Servants to do most of
their work and much of their thinking for them. By the 1940s this
was well established, but no statute or doctrine of common law
had ever sanctioned it, and executive and prerogative powers were
always (as they still are) vested by law in Ministers alone. Intra-departmental
delegation, theoretically underpinned by Ministerial responsibility,
was an accepted convention, but when in 1943 its lawfulness was
challenged (Carltona Ltd v Commissioners of Works [1943]
2 All ER 560) the Court of Appeal found itself compelled to elevate
departmental practice into a doctrine of law. Since the whole
immunity of the state from tort actions rested on the theory that
Civil Servants were the servants not of their Ministers but of
the Crown, so that the Minister was legally no more than first
among equals, an entirely heterodox concept of the civil servant
as the Minister's alter ego was enunciated. It violated
all the common law rules against unauthorised delegation, but
it perfectly adequately described what went on and could not be
stopped, and it has done service ever since as a principle of
constitutional law." Back
3
Appendix B, Answer 1, paragraph iii. Back
4
In their response the Commissioners did not actually confirm that
the Minister had formally decided that the proposed Order would
not remove any necessary protection or prevent the exercise of
any right or freedom a person might reasonably expect to continue
to exercise (as required by section 3(1) of the Regulatory Reform
Act). However, the general nature of the response to our question
and the fact that the Order may only be made where the Minister
is of this opinion leads us to conclude that this confirmation
has been omitted merely by oversight. Back
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