WT v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr Justice Charleton,Mr. Justice John MacMenamin
• Judgment Date: 31 July 2015
• Neutral Citation: [2015] IESC 73
• Court: Supreme Court
• Docket Number: [Appeal No. 440/11]
• Date: 31 July 2015

Between:

W.T., A.T. (A Minor Suing by her Father and Next Friend W.T.), B.G. and M.T. (A Minor Suing by her Mother and Next Friend B.G.)

Appellants

and

Minister for Justice & Equality, the Attorney General and Ireland

Respondents

[2015] IESC 73

Hardiman J.

MacMenamin J.

Laffoy J.

Dunne J.

Charleton J.

[Appeal No. 440/11]

THE SUPREME COURT

JUDICIAL REVIEW

Immigration and asylum- Minister for Justice and Equality-Departmental officials- Decision-making -Devolved power to an official- Immigration Act 1999- Aliens Act 1935- Carltona principle- Carltona Ltd. v. Commissioners of Public Works [1943] 2 All E.R. 560 -Tang v. Minister for Justice [1996] 2 ILRM 46- Devanney v. Minister for Justice [1998] 1 ILRM 81

Facts Ministers are regarded as being one and the same as the government departments of which they are political heads. Departmental officials act in the name of the Minister. Functions entrusted to departmental officials are performed at the appropriate level of seniority and within the scope of responsibility. No express act of delegation is necessary. This is known as the Carltona principle. It was devised for practical purposes, as it would be impractical for a Minister, the political head of department, to personally take every single decision. The principle can be negatived by express statutory provision to the contrary or by necessary implication. The Oireachtas can by legislation restrict a Minister”s power to devolve a decision, therefore requiring the Minister to exercise such decision-making powers personally. This requires clear statutory terminology.

The appellants are Nigerian nationals. They failed to obtain political asylum and deportation orders were subsequently made. The deportation orders were signed by Mr Noel Watters, a senior official in the respondent”s department, on 29th July 2011. The appellants sought to appeal the judgment of Hogan J dismissing their claim for judicial review of the Minister”s decision to deport them. Pursuant to s.5 Illegal Immigrants (Trafficking) Act 2000 the judge certified a point of law of exceptional public importance…“Whether the decision of the Minister for Justice & Equality to make a deportation order in respect of the appellants pursuant to s.3(1) of the Immigration Act 1999 must be taken personally by the Minister”. The appellants argued the decision to deport must be taken by the Minister personally. In order to succeed it was necessary for them to show that the Carltona principle had been negatived by statute or by necessary implication.

Held The judge considered and applied the relevant authorities. In Tang the proposition that the decision had to be made personally be the Minister was rejected. Following Tang, the judge stated there was no doubt that the decision in question was one within the scope of the relevant official”s scope of authority. No convincing case had been advanced by the appellants to argue Tang and Devanney were incorrect and/or distinguishable nor were the circumstances of the appellants in any way exceptional (see s.3 Immigration Act 1999). The appellants were unsuccessful in demonstrating that the decision-making power had been negatived by express statutory provision or by necessary implication - there were no express words restricting the decision of the Minister and the judge was unable to find any words of implication in the 1999 Act.

-Appeal dismissed

Judgment of Mr. Justice John MacMenamin dated the 31st day of July, 2015

Introduction: The Carltona Principle

1 It is now well recognised in the law that each minister must both bear political responsibility to the Dáil, and legal responsibility in the courts, for actions taken by their own departments. In law, ministers are regarded as being one and the same as the government departments of which they are the political heads. Conversely, departmental officials act in the name of the minister. In making administrative decisions, therefore, discretion is conferred on a minister, not simply as an individual, but rather as the person who holds office as head of a government department, which collectively holds a high degree of collective corporate knowledge and experience, all of which is imputed to the political head of the department. Frequently a minister's officials will prepare documents for consideration, consider objections, summarise memoranda, and outline a policy approach to be taken by the Minister as an integral part of the decision-making process. Part of this arrangement, identified as the eponymous Carltona principle, is that the functions entrusted to departmental officials are performed at an appropriate level of seniority, and within the scope of responsibility of their government department. No express act of delegation is necessary. When the principle became a recognised part of Irish law, it was characterised as being a ‘ common law constitutional power’ (see Carltona Ltd. v. Commissioners of Public Works [1943] 2 All E.R. 560; Bushell v. Secretary for State for the Environment [1981] AC 75 HE Lord Diplock; R. v. Home Secretary, ex p. Oladehinde [1991] 1 A.C. 254, at 282, per Lord Donaldson M.R.; approved by Hamilton C.J. in Tang v. Minister for Justice [1996] 2 ILRM 46; and in Devanney v. Minister for Justice [1998] 1 ILRM 81). The constitutional origins of the power derived from the executive power of the State, identified, inter alia, in Article 28 of the Constitution.

2 The principle, clearly, involves a significant degree of reciprocal trust between ministers and officials. An actual decision-maker is vested with the Minister's devolved power. As a matter of prudence, if no more, a minister may often put in place sufficient procedures to ensure that decisions taken, which are of high significance to individuals (such as deportation), are actually reflective of government policy, and are, truly, exercised in a manner which is genuinely discretionary.

The Test for Excluding Carltona

3 In law, the principle, thus expressed, is capable of being negatived or confined by express statutory provision to the contrary, or by necessary implication (see generally, Chapter 11 Administrative Law in Ireland 4th Edition, Hogan & Morgan, Roundhall Press). In such cases, then, the test is whether it can be established that a statute clearly conveys that the Carltona principle is not to be recognised, or clearly implies such a conclusion. Although the doctrine was devised under the exigencies of administration in the United Kingdom in World War II, it is now seen as a judicial recognition of the complexity of the administration of modern states, where it would be impractical, that a minister, as political head of a department, could personally take every decision.

4 In identifying the scope of this principle, a distinction is made when a decision maker is a statutory office holder; then different considerations arise. For present purposes, I distinguish between devolvedCarltona powers and what I characterise as delegated statutory powers. The Carltona principle does not apply to statutory office holders exercising decision-making functions delegated by Statute. If, on the other hand, the decision-maker is a civil servant assigned specific duties under Statute, but who operates a devolved power vested in the Minister, then the Carltona principle will apply.

5 The Oireachtas can, by legislation, restrict or prohibit a Minister's power to devolve a decision, and may require the Minister to exercise such decision-making power in person. This will require very clear statutory terminology; for example, words to the effect that a direction, or decision, should be made or performed by a Minister ‘ and not by a person acting under his authority’. It follows that a court will be very slow to read into a statute any such implicit limitation; providing that the devolved power does not conflict with the duties of an official in the discharge of their specific functions, and that the decision in question is suitable to their grading and experience.

The Circumstances of the Appeal

6 These general considerations form the background to this appeal brought by the appellants, who are Nigerian nationals who have failed to obtain political asylum, and are now the subject of deportation orders. No material has been placed before the Court to show that their cases are exceptional, in the sense that some particular features, as identified in s.3 of the Immigration Act, 1999, concerning humanitarian considerations, the common good, national security, or public policy, arise. The deportation orders were signed by Mr. Noel Waters, a senior official in respondent's department on the 29th July, 2011. Mr. Waters was then the Director General of the Irish Naturalisation and Immigration Service, which is part of the respondent's department. In that year 1,334 such decisions fell to be considered.

7 The appeal before this Court is against a succinct judgment and order of Hogan J., delivered in the High Court, dismissing the claim for judicial review of the Minister's decision to deport the appellants, which order was made in the name of the Minister. In so holding, however, and pursuant to s.5 of the Illegal Immigrants (Trafficking) Act 2000, the judge certified the following point of law of exceptional public importance, such that it was desirable in the public interest that an appeal should be taken to the Supreme Court thereon:

‘Whether the decision of the Minister for Justice & Equality to make a deportation order in respect of the appellants pursuant to s.3(1) of the Immigration Act, 1999 must be taken personally by the Minister.’

8 The appellants submit the deportation order concerning them must, in law, be taken by the respondent Minister. To succeed, they must show that the Carltona...