Can't Pay We'll Take it Away TV programme

[mikeymack2002]

An interesting read today as follows

 

"As a landlord, agent or solicitor, if you have used a High Court Enforcement Officer who did not follow the proper process, you could find that you’re liable for a significant claim for damages.

 

 

 

In recent years, there has been a large increase in the use of High Court Enforcement Officers (HCEO) to evict residential tenants, which is no great surprise, as HCEOs can frequently enforce far more quickly than a County Court Bailiff (CCB) can.

 

How could the eviction be illegal?

 

At present, HCEOs can only use a standard writ of possession to evict trespassers, i.e. “persons unknown” such as squatters.

 

For an HCEO to evict a tenant who remains in a property after a possession date, they MUST obtain permission from the County Court under Section 42 of the County Court Act 1984 to transfer enforcement of the order for possession to the High Court. Without this permission, any writ of possession enforced is invalid and any action taken under it will be illegal.

Are illegal evictions taking place?

 

In the last 18 months the High Court enforcement sector has seen a quantity of small ‘franchise’ bailiff firms, many operating under the authority of a single authorised High Court Enforcement Officer.

Some of these firms are offering guaranteed seven day evictions of residential tenants, which does not allow time to obtain court permission to transfer up.

 

It is our understanding that some of these firms may be applying for the writ of possession, without having previously obtained permission from the County Court to transfer up the order for possession to the High Court for enforcement, perhaps because they are not aware of this legal requirement.

 

If any of these firms are evicting tenants under a writ of possession but without court permission to transfer up, then those evictions will have been conducted illegally.

Exposure to claims for damages

 

Whilst it is understandable that every landlord wants possession of their property without the lengthy delays regularly quoted by the County Court Bailiffs, the potential cost implications for a landlord for incorrectly evicting a tenant can be huge - claims for damages might come from both the tenants, as well as the local authority that had to rehouse them in emergency accommodation. As well as claiming for considerable damages from the landlord, the tenant may also make a claim against the bailiff company that evicted them and the authorised HCEO personally.

If you think you may be affected

 

If you have used the services of one of these ‘franchise’ HCEO firms, it would be prudent to now demand to see the court order allowing the HCEO to undertake the eviction. Be advised that this is NOT the writ of possession, but is a separate standard court order. If the HCEO cannot produce this, you could be looking at a claim for damages landing on your doormat any day soon. It would also be prudent to ask the HCEO company for details of their insurers."

 

Story from Scoop today here http://www.scoop.it/t/lacef-news

 

Info in full from here http://thesheriffsoffice.com/articles/are-you-evicting-tenants-illegally

Edited November 20, 2014 by mikeymack2002
spelling errors

[citizenB]

Can you provide your source for this, please

[mikeymack2002]

My bad forgot this will edit post.. Now edited to include the source of the info

[citizenB]

My bad forgot this will edit post.. Now edited to include the source of the info

 

Brilliant, thank you

 

[ploddertom]

Think we need to say there is a distinction between collecting for Commercial Rent Arrears & Evictions which this more concerned with.

[dx100uk]

oh dear this doesn't look good for that lot on channel 5 then?

 

 

that appears to be 95% of the programs.....

 

 

dx

[brassnecked]

oh dear this doesn't look good for that lot on channel 5 then?

 

 

that appears to be 95% of the programs.....

 

 

dx

 

Don't think they are clever enough to realise that though, or are clever but think they won't get caught being naughty even though they are on TV doing it.

[mikeymack2002]

The idea behind the post was to make others aware what needs to be done correctly before the eviction takes place.

 

 

I hope this will be of interest to those in this position

[jotho]

I'm going to look into this a bit deeper. Could you quote the legislation they draw their authority from, please?

 

Hi there. I've been doing a lot of investigation into this area and have come up with some real surprises. Based on the law which I will quote below, a HCEO has no power to delegate his authority to anyone and must always be present at an enforcement. Under paragraph 2(1) of schedule 7 of the Courts Act 2003 "an enforcement officer is an individual who is authorised to act as such by the Lord Chancellor or a person acting on his behalf". As we know, ALL HCEOs are appointed by the Lord Chancellor and there are only a few hundred of these across the country. A list of them can be found by googling.

 

It is what these guys do with that power which has become corrupted. Realising the incredible potential for commercial activity which this power confers they have established private enforcement companies and unlawfully confer their powers to third parties who go out rampaging around the country kicking peoples doors in.

 

There are two factors to look at here. Firstly the principle "delegarum non potest delegare" which is a Latin maxim, one of the highest principles in administrative law, which states that delegated power may not be further delegated. The Lord Chancellor delegates his power to an enforcement officer who, after extremely careful scrutiny, is appointed to act on his behalf in the matter of enforcement of Orders and Writs issued from the High Court. These officers then become SWORN Officers of the Court and not only have the power, but also the duty and obligation, to act in that capacity. It is entirely illogical and beyond any legal provision that these carefully appointed Officers of the Court could then delegate these enormous powers to any Tom, Dick and Harry of their choosing, simply for profit.

 

A HCEO is an Officer of the Court and his power to act as such is restricted to his employment by the Crown. Once he steps outside that sphere of employment and into the private sector the powers conferred on him by the Lord Chancellor become defunct. A policeman is a sworn officer. He can no more "appoint" a bloke in the street to stand in for him one day if he doesn't feel like coming into work than he can use his position as a police officer whilst taking on other employment. He cannot take on a part time job as a bouncer and when he feels like it suddenly say he is a police officer and everyone's under arrest. You cannot serve two masters.

 

The second issue with these bogus HCEOs is that they have taken this section of the law (schedule 7 etc above) and twisted it to their own end. It is quite clear from the provision that the phrase "or a person acting on his behalf" refers to a person acting on behalf of the Lord Chancellor, NOT to a person acting on behalf of the appointed enforcement officer. The structure of the sentence makes that clear and the phrase is used various times within the statute, each time meaning "on behalf of" the Lord Chancellor. Presumably Chris Grayling is too busy to deal with all appointments under his command and has a 2IC to deal with the overload. This in no way grants that authority to be further delegated at will by the appointed enforcement officer. There would have to be a special provision in the original delegation of authority to permit the further delegation of that authority and there is none.

 

By twisting the meaning of this schedule to imply that "a person acting on his behalf" refers to the newly appointed enforcement officer, huge companies have been established and vast amounts of money have been taken from the public. This is a very lucrative business and one which is fast becoming accepted as "normal practice". The police will do nothing beyond Inspector level as they are in cahoots with the [problem] as are the courts who process the bogus "Writs" - but that is another matter for another thread.

 

At the moment I am asking my MP to put a question to Chris Grayling on the floor of the house to elicit clarification as to whether HCEOs whom he has personally selected and appointed may use this authority whilst working in the private sector and whether his personal interpretation of schedule 7 allows his appointed, sworn officers to re-delegate their authority to anyone they choose.

 

I would really welcome any opinions on this, especially legally trained ones, as I need to know if I have missed something here. It seems too huge for them to have got away with it but once a wrong practice becomes established it becomes very hard to get people to listen otherwise. As they say, if you make the lie big enough everyone will believe it. The law, however, is the law.

 

Once this gets out the BBC are going to have to deal with a lot of egg on face and a lot of compensation claims.

[old bill]

Thank you for your research. Jotho. It's certainly an eye-opener and confirms what many have suspected for some time.

 

I know of at least one case where an HCEO is facing prosecution after illegally evicting someone from their home using a Writ obtained on a CCJ that proved to be totally non-existent and the paperwork he used has now been shown to be forgeries. The other issue with High Court enforcement is that it is too open to abuse by claimants, especially utility companies whom, it appears, deliberately inflate solicitor's costs to push a debt into the domain of High Court enforcement. This needs to be stopped, even if it means the Attorney-General adding utility companies' names to the Vexatious Litigants' List.

[Bailiff Advice]

Hi there. I've been doing a lot of investigation into this area and have come up with some real surprises. Based on the law which I will quote below, a HCEO has no power to delegate his authority to anyone and must always be present at an enforcement. Under paragraph 2(1) of schedule 7 of the Courts Act 2003 "an enforcement officer is an individual who is authorised to act as such by the Lord Chancellor or a person acting on his behalf". As we know, ALL HCEOs are appointed by the Lord Chancellor and there are only a few hundred of these across the country. A list of them can be found by googling.

 

It is what these guys do with that power which has become corrupted. Realising the incredible potential for commercial activity which this power confers they have established private enforcement companies and unlawfully confer their powers to third parties who go out rampaging around the country kicking peoples doors in.

 

There are two factors to look at here. Firstly the principle "delegarum non potest delegare" which is a Latin maxim, one of the highest principles in administrative law, which states that delegated power may not be further delegated. The Lord Chancellor delegates his power to an enforcement officer who, after extremely careful scrutiny, is appointed to act on his behalf in the matter of enforcement of Orders and Writs issued from the High Court. These officers then become SWORN Officers of the Court and not only have the power, but also the duty and obligation, to act in that capacity. It is entirely illogical and beyond any legal provision that these carefully appointed Officers of the Court could then delegate these enormous powers to any Tom, Dick and Harry of their choosing, simply for profit.

 

A HCEO is an Officer of the Court and his power to act as such is restricted to his employment by the Crown. Once he steps outside that sphere of employment and into the private sector the powers conferred on him by the Lord Chancellor become defunct. A policeman is a sworn officer. He can no more "appoint" a bloke in the street to stand in for him one day if he doesn't feel like coming into work than he can use his position as a police officer whilst taking on other employment. He cannot take on a part time job as a bouncer and when he feels like it suddenly say he is a police officer and everyone's under arrest. You cannot serve two masters.

 

The second issue with these bogus HCEOs is that they have taken this section of the law (schedule 7 etc above) and twisted it to their own end. It is quite clear from the provision that the phrase "or a person acting on his behalf" refers to a person acting on behalf of the Lord Chancellor, NOT to a person acting on behalf of the appointed enforcement officer. The structure of the sentence makes that clear and the phrase is used various times within the statute, each time meaning "on behalf of" the Lord Chancellor. Presumably Chris Grayling is too busy to deal with all appointments under his command and has a 2IC to deal with the overload. This in no way grants that authority to be further delegated at will by the appointed enforcement officer. There would have to be a special provision in the original delegation of authority to permit the further delegation of that authority and there is none.

 

By twisting the meaning of this schedule to imply that "a person acting on his behalf" refers to the newly appointed enforcement officer, huge companies have been established and vast amounts of money have been taken from the public. This is a very lucrative business and one which is fast becoming accepted as "normal practice". The police will do nothing beyond Inspector level as they are in cahoots with the [problem] as are the courts who process the bogus "Writs" - but that is another matter for another thread.

 

At the moment I am asking my MP to put a question to Chris Grayling on the floor of the house to elicit clarification as to whether HCEOs whom he has personally selected and appointed may use this authority whilst working in the private sector and whether his personal interpretation of schedule 7 allows his appointed, sworn officers to re-delegate their authority to anyone they choose.

 

I would really welcome any opinions on this, especially legally trained ones, as I need to know if I have missed something here. It seems too huge for them to have got away with it but once a wrong practice becomes established it becomes very hard to get people to listen otherwise. As they say, if you make the lie big enough everyone will believe it. The law, however, is the law.

 

Once this gets out the BBC are going to have to deal with a lot of egg on face and a lot of compensation claims.

 

It is a shame that you posted such an important question on such an old thread and in particular given that the subject is such an important one and I suspect could be of interest to the following thread:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?436852-How-many-affected-by-rogue-quot-HECO-s-quot-(1-Viewing)-nbsp

[unclebulgaria67]

It is a shame that you posted such an important question on such an old thread and in particular given that the subject is such an important one and I suspect could be of interest to the following thread:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?436852-How-many-affected-by-rogue-quot-HECO-s-quot-(1-Viewing)-nbsp

 

The site team could start a new thread for jothro, (new) HCEO discussion thread.

[rebel11]

New thread started.

[brassnecked]

If jotho's interpretation is correct, and on the face of it it could well be, the Sheriffs Office and the can't Pay We'll take It Away, brigade could be in deep do doo especially if the appointed HCEO MUST be present, and the Law really states that it is the Lord Chancellor alone who can disburse the power, and not the individual appointed HCEO The renaming and rebranding so to speak of HCEO and bailiffs into Enforcement Agents may well muddy the waters somewhat also.

 

I suspect that it has gone too far for that to be allowed to hamper the Enforcers. Too many "Vested interests" so it will be move along now, nothing to see here.

[Bailiff Advice]

An interesting subject on which to debate and I am sure that a regular poster (HCEO) will have something to add !!!

[brassnecked]

An interesting subject on which to debate and I am sure that a regular poster (HCEO) will have something to add !!!

I'm sure he wil, as HCEOs comes over as ethical and correct , so will likely be equally peeved about any rogues.

[Bailiff Advice]

 

There are two factors to look at here. Firstly the principle "delegarum non potest delegare" which is a Latin maxim, one of the highest principles in administrative law, which states that delegated power may not be further delegated. The Lord Chancellor delegates his power to an enforcement officer who, after extremely careful scrutiny, is appointed to act on his behalf in the matter of enforcement of Orders and Writs issued from the High Court. These officers then become SWORN Officers of the Court and not only have the power, but also the duty and obligation, to act in that capacity. It is entirely illogical and beyond any legal provision that these carefully appointed Officers of the Court could then delegate these enormous powers to any Tom, Dick and Harry of their choosing, simply for profit.

 

 

First, the principle of "delegarum non potest delegare" may be more applicable in the US than it is here. The following article may cast some doubt.

 

http://www.newlawjournal.co.uk/nlj/content/delegation’s-what-you-need

[Deadwood]

I'm pretty sure when I researched this it definitely states that the appointed HCEO can delegate to anyone they need to enforce these writs and delegation means just that, someone doing the job on the HCEO's behalf under their instructions. The HCEO remains ultimately answerable to the creditor and presumably the High Court.

 

HCEO powers are a curiously acane vestige of the powers of the Monarchy, the Monarch of course is above the law, the High Court is the Queen's Court. I've often wondered if there is an equivalent to High Court enforcement in America and Europe. It seems the "our" Courts ie the County Courts have an overreaching authority above them.

[Deadwood]

Did I see one of the High Court enforcers shoulder charge a debtor?

[Bailiff Advice]

Based on the law which I will quote below, a HCEO has no power to delegate his authority to anyone and must always be present at an enforcement.

 

It is what these guys do with that power which has become corrupted. Realising the incredible potential for commercial activity which this power confers they have established private enforcement companies and unlawfully confer their powers to third parties who go out rampaging around the country kicking peoples doors in.

 

The recent TV series 'Cant' pay etc has lead to a lot of complaints being made to the HCEOA (High Court Enforcement Officers Association) about the way in which a 'writ of control' (previously a writ of fi fa) can be endorsed to one individual and that same person can allocate the actual enforcement of the writ to any number of companies that he personally has a 'connection' with. There can be no doubt that person could not possibly have any control at the way in which the writ is enforced.

 

I am speaking here about Mr Simon Williamson and it is my personal belief that he is connected with no less than a dozen companies (if not more). Some are listed below:

 

 

County Bailiff Company / County Civil Enforcement Agents

 

Wolf Enforcement Services Ltd t/a DJ Collections & Bailiffs Services

 

High Court Solutions Ltd

 

The Madagans London Group Ltd

 

Burton Bailiffs Ltd

 

Commercial Rent Bailiffs Ltd

 

Anglian Debt Recovery

 

Direct Collections Bailiffs Limited

 

High Court Collections Ltd

 

Security Solutions Yes Ltd

 

Court Enforcement Services Ltd

 

Millbank Group

 

PS: If my info above is incorrect could somebody please PM me and I will amend this post.

[jotho]

First, the principle of "delegarum non potest delegare" may be more applicable in the US than it is here. The following article may cast some doubt.

 

http://www.newlawjournal.co.uk/nlj/content/delegation’s-what-you-need

 

Hi there. First a correction. My original typo "delegarum" should read "delegatus". I can't open the page you suggest here but would like to read what it says. US law, being based on English law, rarely differs much in principle in my experience. Case law differs obviously and statutes but not principles.

Could someone from CAG please advise how to get this onto a better thread? One appears to have been opened but I don't know what has happened to my original post and if it has been "transferred" there. Not very savvy manoeuvring around the site I'm afraid and need a bit of help.

[jotho]

First, the principle of "delegarum non potest delegare" may be more applicable in the US than it is here. The following article may cast some doubt.

 

http://www.newlawjournal.co.uk/nlj/content/delegation’s-what-you-need

 

Hi Bailiff Advice. I've found a quote of particular interest here: Where the exercise of the discretionary power is entrusted to a named officer – e.g. a chief officer of police, a medical officer of health or an inspector – another officer can not exercise powers in his stead unless express statutory provision is made in this regard [11] .

 

Read more: The Delegation Of Discretionary Powers | Law Teacher http://www.lawteacher.net/administrative-law/essays/the-delegation-of-discretionary-powers-administrative-law-essay.php#ixzz3JyBbCRTh

Follow us: @lawteachernet on Twitter | LawTeacherNet on Facebook

[Bailiff Advice]

Did I see one of the High Court enforcers shoulder charge a debtor?

 

Hi there. First a correction. My original typo "delegarum" should read "delegatus". I can't open the page you suggest here but would like to read what it says. US law, being based on English law, rarely differs much in principle in my experience. Case law differs obviously and statutes but not principles.

Could someone from CAG please advise how to get this onto a better thread? One appears to have been opened but I don't know what has happened to my original post and if it has been "transferred" there. Not very savvy manoeuvring around the site I'm afraid and need a bit of help.

 

I think that we seem to have three different threads on more or less the same subject (which is an important one). I will get a message to one of the moderators to see the best way to resolve this.

[outlawla]

...I can't open the page you suggest here but would like to read what it says....

 

This is 'the article' I think.

[Bailiff Advice]

Nicholas Dobson looks at how far officers in the public sector can delegate their powers

 

Delegatus non potest delegare: roughly translated, this means if something’s been delegated to you, you cannot delegate further. However, the maxim does not bind to the extent that there is express or implied authority to delegate and if the rule were to be applied with punctilious rigour, public administration would seize up.

 

In the public sector, the position is different depending upon the nature of the body in question. Central government powers, for example, are conferred either by statute, Royal Prerogative or a combination of both. Local authority powers arise entirely from statute, either expressly or by implication.

When considering whether discharge of a particular duty or responsibility is required to be executed personally by an office holder or whether it is capable of delegation—and if so when, how and to what extent—it is necessary to look at the nature, context and circumstances of the particular measure.

 

This article will consider the decision of the Divisional Court in DPP v Haw [2007] EWHC 1931 (Admin), [2007] All ER (D) 29 (Aug) and will then look at some particular local authority delegation issues.

 

brian haw’s demonstration

 

Brian Haw has been demonstrating in Parliament Square against the government’s policy on Iraq since June 2001. At issue in DPP v Haw was the lawfulness of conditions purportedly imposed upon him under the Serious Organised Crime and Police Act 2005 (SOCPA 2005), s 134.

 

Under SOCPA 2005, s 132 it is an offence for an unauthorised demonstration to take place in a designated place. A person seeking such authorisation must give written notice to that effect to the commissioner of police of the metropolis. Under SOCPA 2005, s 134 it is the commissioner who “must give authorisation for the demonstration to which the notice relates” and in so doing, the commissioner may impose such specified conditions as in his “reasonable opinion” are necessary for the purpose of preventing various matters detailed in s 134(3).

 

Following an application on behalf of Haw, a police superintendent purported to authorise the demonstration to continue subject to conditions. One of the issues before the Divisional Court was whether or not the statutory powers available to the commissioner could be exercised by a subordinate on his behalf.

 

At first instance, the judge had held that the commissioner could not delegate as he had purported to do save within the powers available under the Police Act 1996 (PA 1996), ie to the deputy commissioner or one of the five assistant commissioners. However, the Divisional Court held that in the circumstances the powers under SOCPA 2005, s 134 could be exercised by a subordinate on behalf of the commissioner.

 

CARLTONA PRINCIPLE

 

The core principle in such matters derives from the Court of Appeal’s ruling in Carltona Ltd v Works Comrs [1943] 2 All ER 560 that the functions given to ministers are so multifarious that no minister could ever personally attend to them. Consequently, the duties and powers conferred upon ministers are normally exercised under their authority by responsible officials of the relevant department of state. However, constitutionally, the decision of such officials is the decision of the minister for which the minister is accountable to Parliament. As Lord Greene indicated in Carltona:

 

“The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them.”

 

In Haw, the Divisional Court considered that there is scope for further refinement of the Carltona principle, ie that the devolution of a minister’s powers should be subject to a requirement that the seniority of the official exercising a power should be of an appropriate level having regard to the nature of the power in question. However, what was currently at issue was whether the Carltona principle could be applied not to a minister, but to the commissioner.

 

STATUTORY IMPLICATION

 

In considering this, the Divisional Court noted the comments of Lord Justice Laws in R (Lainton) v Chief Constable of the Greater Manchester Police [2000] 1 Pol LR 67, apparently based upon statutory implication rather than the Carltona principle:

“Where the exercise of a discretionary power is entrusted to a named officer…another officer cannot exercise his powers in his stead unless express statutory provision has been made for the appointment of a deputy or unless in the circumstances the administrative convenience of allowing a deputy or other subordinate to act as an authorised agent very clearly outweighs the desirability of maintaining the principle that the officer designated by statute should act personally.”

 

In Haw the Divisional Court took the view that: “Where a statutory power is conferred on an officer who is himself the creature of statute, whether that officer has the power to delegate must depend upon the interpretation of the relevant statute or statutes. Where the responsibilities of the office created by statute are such that delegation is inevitable, there will be an implied power to delegate. In such circumstances there will be a presumption, where additional statutory powers and duties are conferred, that there is a power to delegate unless the statute conferring them, expressly or by implication, provides to the contrary.”

 

The court felt this was indistinguishable from a case in which the Carltona principle applies. It noted that provisions in PA 1996 permitted delegation of the powers and duties of the commissioner in circumstances where, having regard to the nature of those powers and duties, there would not be an implicit power to delegate.

 

However, the court felt that these do not exclude the possibility of delegation to other officers where, having regard to the nature of the powers and duties, a power to delegate is implicit. On the contrary, having regard to the statutory role of the commissioner, it would be expected that Parliament, when conferring powers to be exercised by the Metropolitan Police, would confer them on the commissioner and then leave him to delegate the exercise of those powers as appropriate.

 

So in this case it was plain that:“Parliament cannot have intended that the Commissioner should determine the conditions himself.”

 

LOCAL AUTHORITY DELEGATIONS

 

Local authorities have, in the Local Government Act 1972 (LGA 1972), s 101 specific statutory power to arrange for the discharge of their functions to a committee, sub-committee or an officer of the authority or to any other local authority. This power is subject to any express provision within LGA 1972 or any subsequent Act.

 

However, under the Local Government Act 2000 (LGA 2000), Pt II, many local authority functions are discharged by local authority executives. These are defined in LGA 2000, s 11 and usually consist of groups of councillors appointed in accordance with that section (cabinets) with either a leader elected by the authority or a directly elected mayor.

 

LGA 2000, s 13(2) provides that subject to specified exceptions any function not specified in the Local Authorities (Functions and Responsibilities) (England) Regulations (SI 2000/2853) is to be the responsibility of the council’s executive. In England, LGA 2000, s 14 enables arrangements for the discharge of functions by the executive itself, another member/members of the executive, a committee/committees of the executive or by an officer/officers of the council.

 

Authorities will consequently have in place schemes of delegation for both authority functions under s 101 and those conducted on the authority’s behalf under executive arrangements. Common and legal sense dictate that these are followed carefully. But those purporting to discharge particular functions may frequently be hazy or ignorant of the authority for their actions and the detailed provisions governing them.

 

SCOPE OF POWERS

 

A case in point was the decision in R (Selter Associates Limited) v Leicestershire County Council [2005] EWHC 2615 (Admin), [2005] All ER (D) 236 (Oct) which concerned the purported making of a temporary road traffic prohibition order under the Road Traffic Regulation Act 1984, s 14.

This power had been delegated to the council’s director of highways, transportation and waste management, subject to the concurrence of the council’s chief executive. According to the council’s assistant head of legal services, the chief executive had delegated these powers to the council solicitor under the scheme of delegation and she in turn had delegated her powers to the officer in her department who made the order in question.

 

Mr Justice Walker said that one difficulty with this was that (assuming that it was open to the chief executive to delegate the requisite concurrence and that he did so delegate):

“One would have expected the council to have produced some evidence that an individual had applied his or her mind to the question: should I concur in the making of this order on behalf of the chief executive on the basis that making this order is a proper exercise of discretion, not merely in the legal sense, but on the merits?”

 

The court, however, noted that there was nothing to suggest that anybody performed that function. Walker J could understand that there will be an officer who identifies the relevant legal questions, drafts the order and if satisfied that a checklist of legal requirements have been met, arranges for the order to be published, signed by the county solicitor. However:

 

“It would be very surprising indeed if such a person had delegated powers to consider whether, as a matter of discretion, the order was one which should or should not be made. There is no suggestion that there was anything in the checklist along those lines, and I would be very surprised indeed if there were.”

 

The task of preparing and processing road traffic and footpath diversion orders was “a completely different task from the important role of considering whether the chief executive’s approval should be given to what is proposed”. Consequently, the court quashed the order.

 

As Lord Justice Pill said in R (Carlton-Conway) v Harrow London Borough Council [2002] EWCA Civ 927, [2005] All ER (D) 79 (Jun):

 

“Where powers are delegated to a single individual the scope of those powers must be considered carefully. However, judges are there to regulate the lawfulness of executive decisions and not to interfere unwarrantedly with the arrangements for making them.”

 

CONSTRUCTION

 

Clearly the nature and scope of any delegation must be a matter of construction of the particular measure. However, the law does recognise that one senior individual cannot do everything personally. In local government there are mature statutory and administrative provisions which appear to have been sensibly construed by the courts. But it is equally clear that those who operate delegations in haste and are careless as to their precise terms may repent at leisure.

 

Dr Nicholas Dobson is head of local and public law at Pinsent Masons