To what extent can civil servants stand in the shoes of their ministerial masters and make decisions on their behalf? The High Court tackled that issue in an important test case concerning the criminal prosecution of an employer who was accused of making 84 warehouse staff redundant without informing Central Government.
By Section 194 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), the employer was obliged to notify the Secretary of State for Business, Innovation and Skills of any proposal to make 20 or more employees redundant. Criminal proceedings were instituted against him on the basis that he had failed to do so and his arguments that the prosecution was a nullity were rejected by a judge.
The decision to prosecute was taken by a civil servant on behalf of the minister. It was not a matter of agency or delegation, but one of devolution of the decision-making role to the official as the alter ego of the minister. The employer submitted that, on a true construction of TULRCA, the decision could only lawfully have been taken by the minister in person or by a suitably qualified official to whom he had specifically delegated the power to initiate proceedings.
In dismissing his appeal, however, the Court noted that the functions given to ministers are so multifarious that they cannot possibly attend to them all personally. The wording of TULRCA – which required the relevant decision to be taken only by or with the consent of the Secretary of State – was sufficiently broad to enable civil servants to take such decisions with the minister’s specific consent.
The Court certified that the case had raised an issue of general public importance, but left it to the Supreme Court to decide whether or not to hear any further appeal by the employer.
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