Carltona Ltd v Commissioners of Works and Others

[1943] 2 All ER 560

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(Judgment by: Lord Greene MR.)

Carltona Ltd
vCommissioners of Works and Others

Court:

Judges: Lord Greene MR
Goddard
Du Parcq LJJ

Hearing date: 5, 6 OCTOBER 1943
Judgment date: 6 October 1943

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Judgment by:
Lord Greene MR.

The following judgments were delivered.

In the early part of the year 1942 the Government was confronted with a shortage both of accommodation and of labour. During the first half of that year discussions took place between the relevant departments and a particular industrial body with a view to seeing whether a certain industry could be concentrated in such a way as to set free accommodation and labour. The industry with which we are concerned in this appeal relates to the manufacture of certain food products described by the managing director of the appellants as "farinaceous and allied food products."

It was decided as the result of discussions to close the factory at Willesden belonging to the appellants, thus setting free the accommodation which the factory was capable of giving and the labour which the factory was employing. That decision, which was finally come to, as appears in the correspondence and the affidavit of Mr Roberts, some time in August 1942, was made with the approval of the Ministry of Food. That approval was obviously necessary as a practical matter, because it would be an impossible position for the Board of Trade interested in accommodation and the Ministry of Labour interested in labour to take the steps necessary to put a factory out of action when that factory was manufacturing products in which the Ministry of Food was interested. Therefore, according to normal practice, the Ministry of Food was a party to these discussions and they decided that they could dispense with the appellants' factory.

The decision having been taken and communicated to the appellants that their factory had been scheduled for closing, the Ministry of Food and the Ministry of Labour and National Service took steps, at some time which is not material, to carry that decision into effect so far as the Ministry of Food was concerned by withholding supplies of raw material and so far as the Ministry of Labour was concerned by withdrawing labour from the factory. Whether these processes had been completed or not seems to me to be quite irrelevant.

It so happened that the Commissioners of Works required storage space and it was suggested to them in August that they might consider the suitability of the plaintiffs' premises for such storage. This, of course, had become possible owing to the fact that the decision to close down the plaintiffs' factory was, if not formally taken at that stage, at any rate quite certain to be taken; and, not unnaturally, the department of the Board of Trade concerned with the control of factory and storage premises put forward these particular premises as being available for the Commissioners of Works for their storage purposes.

That being the position the writ in this action was issued on 9 November. Before it was issued a notice dated 4 November signed on behalf of the Commissioners of Works, had been sent to the appellants stating that the Commissioners were taking possession of their premises. I will refer later to the form of that notice and the significance of it. The writ issued against the Commissioners of Works, the Minister of Food and the Minister of Labour and National Service claimed a declaration, putting it shortly, that the Commissioners of Works were not entitled to take possession and that the notice was invalid and, secondly, an injunction restraining the defendants and all of them from acting upon the said notice "or from directly or indirectly taking any steps calculated to enforce the same by in any way interfering with the plaintiffs' possession of the said factory or the plaintiffs' supply of raw materials or labour therefor, or otherwise."

The complaint against the Minister of Food on the face of that writ appears to be connected with the withholding of raw materials, and the complaint against the Minister of Labour appears to be concerned with the withholding or diversion of labour from the plaintiffs' factory. The complaint against the Commissioners of Works is a complaint against their action in requisitioning the plaintiffs' factory. It does not appear that the complaints against the Minister of Food and the Minister of Labour and National Service were persisted in before Hilbery J. In this court it has not been suggested that any claim will lie against either of those Ministers in respect of their actions, and the sole matter which has been presented for our consideration relates to the validity of the action of the Commissioners of Works in requisitioning the premises.

The regulation under which their action was taken is reg 51(1) of the Defence (General) Regulations. It is in these terms:

'A competent authority, if it appears to that authority to be necessary or expedient so to do in the interests of the public safety, the defence of the realm or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, may take possession of any land, and may give such directions as appear to the competent authority to be necessary or expedient in connection with the taking of possession of that land.'

The notice of 4 November is signed by a Mr Morse for and on behalf of the Commissioners of Works. It is on the headed letter-paper of the Ministry of Works and Planning, whose connection with the Commissioners of Works arises in a way which I will indicate in a moment. The letter says:

'I have to inform you that the department have come to the conclusion that it is essential, in the national interest, to take possession of the above premises occupied by you.'

Then the appellants are asked to take the letter as formal notice, and they are directed to arrange for the removal of such chattels as are not requisitioned.

It is necessary to say a word about the position of the Commissioners of Works. First of all, the phrase "a competent authority" in the regulation which I have read includes among other departments of State the Commissioners of Works. As is well-known, the Commissioners of Works are a body that never meets. By statute, namely, the Crown Lands Acts 1851 and 1852, the functions and powers of Commissioners of Works are exercised by the First Commissioner, and the First Commissioner of Works holds a ministerial appointment and is the head of what is commonly called the Office of Works. In the year 1942 a statute was passed called the Minister of Works and Planning Act 1942, which empowered His Majesty to appoint a Minister of the Crown by the name of the Minister of Works and Planning, and the Act provided for transfer to the Minister of functions exerciseable under any enactment by the Commissioners of Works. It also provided in s 1(2) that, until the office of the First Commissioner of Works should cease to exist under an Order in Council - - that has not happened or, at any rate, it had not happened at the relevant date - - any person appointed to hold office as Minister of Works and Planning should be virtue of that office also hold office as First Commissioner of Works. Therefore, the Minister of Works and Planning holds the dual office of that Ministry and First Commissioner and accordingly the competent authority for the purpose of this regulation, so far as regards the Commissioners of Works, is the Minister of Works and Planning in his office of First Commissioner. Constitutionally the decision remains the decision of the Commissioners of Works, and the letter is quite properly signed on behalf of the Commissioners of Works.

The action was dismissed by Hilsbery J, on the ground that it was not competent to him to inquire into the merits of the case so far as regards the desirability or the policy of requisitioning the plaintiffs' premises.

The points that were taken before us were three, and I will deal with them in order. First of all, it was said that the notice was a bad notice because it gave a reason which was not mentioned in the regulation. That argument means that the regulation refers to the public safety, the defence of the realm, and so forth, whereas the notice says that the department had come to the conclusion that it was essential in the national interest to take possession. It is said, therefore, that the notice is bad.

It is to be observed that, in order to exercise the requisitioning powers conferred by the regulation no notice is necessary at all and, therefore, the question of the goodness or badness of a notice does not in truth arise. The giving of notice is not a pre-requisite to the exercise of the powers and, accordingly, the notice must be regarded as nothing more than a notification, which the Commissioners were not bound to give, that they are exercising those powers. The notice is no doubt for what it is worth, evidence of the state of mind of the writer and those by whose authority he wrote, and it is perfectly legitimate to argue that this notice suggests, on the face of it, that those who were directing their minds to this question were directing them to the question whether the action proposed was in the national interest and not to the specific matters mentioned in reg 51. But the notice is not more than evidence of that, and when an assistant secretary in the Ministry of Works gave evidence it was perfectly clear that he was using that phrase - - and this letter was written on his instructions - - as a sort of shorthand comprising the various matters in reg 51 upon which the requisition would have been justified. The mere use of the phrase "in the national interest" in this letter appears to me to lead the plaintiffs nowhere when the fact appears, as it appears as clearly as anything can be, that the assistant secretary was acting with regard to this regulation itself and was using the phrase "in the national interest" as a comprehensive phrase to cover all the grounds which are mentioned in the regulation. That point appears to me to have no substance at all.

The next point which was taken was that the requisition itself was bad quite apart from the notice because the persons constituting the requisitioning authority never brought their minds to bear on the question. That argument is based, as it seems to me - - and I say this without the slightest disrespect to the argument - - upon a complete misapprehension as to the facts. It appears to have been thought at the time of the trial that the proper persons to take into consideration the question of exercising the power under this regulation were the Commissioners of Works themselves, a body which, as I have said, never meets. If that idea ever was put forward, and I am not quite sure whether it was or not, a moment's consideration will show that the argument cannot be supported for the very simple reasons, first, that the person who has the statutory power to act for the Commissioners of Works is the First Commissioner, and, secondly, that the person acting for the First Commissioner in this matter was the assistant secretary. There is no point in the argument at all that the Commissioners of Works as such did not take the matter into consideration, nor is there, in my opinion, any substance in the argument that, at any rate, the First Commissioner did not personally direct his mind to the matter.

In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministers. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. 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 the present case the assistant secretary, a high official of the Ministry, was the person entrusted with the work of looking after this particular matter and the question, therefore, is, relating those facts to the argument with which I am dealing, did he direct his mind to the matters to which he was bound to direct it in order to act properly under the regulation?

The argument on that view of it amounts to this: it is said that the assistant secretary never directed his mind to any one of the various heads mentioned in reg 51. It is pointed out that, in reg 51, those heads are put as alternatives:

'... in the interests of the public safety, the defence of the realm or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community ...'

It was said that it was the duty of the person acting in the capacity of "a competent authority" to examine the facts of the case and consider under which, if any, of those various heads the matter came, and it is said that the assistant secretary did nothing of the kind. It is to be observed that those heads are not mutually exclusive heads at all. They overlap at every point and many matters will fall under two or more of them, or under all four. I read the evidence as meaning that the assistant secretary, seeing quite clearly that the case with which he was dealing and the need that he wished to satisfy was one which came under the regulation, did not solemnly sit down and ask himself whether it was for the efficient prosecution of the war that this storage was required for maintaining supplies and services essential to the life of the community. He took the view that it was required either for all those purposes, or, at any rate, for some of them, and I must confess it seems to me that it would have been a waste of time on the facts of this case for anyone seriously to sit down and ask himself under which particular head the case fell. He regarded it, as I interpret his evidence, as falling under all the heads, and that may very well be having regard to the fact that these heads overlap in the way that I have mentioned. It seems to me, therefore, that there is no substance in that point, and his evidence makes it quite clear that he did bring his mind to bear on the question whether it appeared to him to be necessary or expedient to requisition this property for the purposes named, or some of them.

The last point that was taken was to this effect, that the circumstances were such that, if the requisitioning authorities had brought their minds to bear on the matter, they could not possibly have come to the conclusion to which they did come. That argument is one which, in the absence of an allegation of bad faith - - and I may say that there is no such allegation here - - is not open in this court. It has been decided as clearly as anything can be decided that, where a regulation of this kind commits to an executive authority the decision of what is necessary or expedient and that authority makes the decision, it is not competent to the courts to investigate the grounds or the reasonableness of the decision in the absence of an allegation of bad faith. If it were not so it would mean that the courts would be made responsible for carrying on the executive government of this country on these important matters. Parliament, which authorises this regulation, commits to the executive the discretion to decide and with that discretion if bona fide exercised no court can interfere. All that the court can do is to see that the power which it is claimed to exercise is one which falls within the four corners of the powers given by the legislature and to see that those powers are exercised in good faith. Apart from that, the courts have no power at all to inquire into the reasonableness, the policy, the sense, or any other aspect of the transaction.

The appeal must be dismissed with costs.