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Law and change: Scottish legal heroes
Law and change: Scottish legal heroes

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4 Who can make the decision

The general rule is that where legislation confers a power on a specified individual or body, the power must be exercised by that individual or body and must not be given away to another person or body.

However, there are many exceptions to this rule. In particular, both courts and tribunals accept that government ministers cannot possibly personally make every decision which is made in their name. It is common practice that officials may act on their behalf. The ‘Carltona principle’ (after a leading case) applies to national government. This sets out the theory that, legally and constitutionally, the acts of officials are the acts of their government ministers provided the official is acting with the express or implied authority of the government minister. This principle does not apply in local government.

Where the Carltona principle applies, a decision can only be taken on a government minister’s behalf by an official of appropriate seniority and experience. There will, however, always be some cases where the special importance of the decision, or its consequences, mean that the government minister must make the decision personally.

Specific statutory provisions are such instances which may require that the government minister make the decision personally. If the power can be delegated, it must be checked whether there are limitations on the seniority of officials who can exercise the power on the government minister’s behalf.