DELEGATION OF POWERS FOR MODERN GOVERNMENT

• Author: Makoto HONG Cheng LLB (Singapore Management University); Associate Fellow, Attorney-General's Chambers Academy. WONG Huiwen Denise LLM (New York University), MA (University of Cambridge); Executive Director, Attorney-General's Chambers Academy.
• Publication year: 2019
• Citation: (2019) 31 SAcLJ 94
• Published date: 01 December 2019
• Date: 01 December 2019

I. Introduction

1 It is a principle of administrative law that when Parliament vests power in an official or authority, there is a presumption that the power must be exercised by that named official or authority, and no other person. This principle is expressed in the maxim delegatus non potest delegare,

namely, a delegate may not delegate to another person a power that has been delegated to him. A rigid application of the principle, however, would make the efficient operation of modern government an impossibility due to the sheer volume of administrative decisions and subsidiary legislation that statutory office holders are required to make. Parliament and the courts have therefore developed both statutory and common law methods for statutory powers to be delegated and devolved. While essential to the functioning of modern government, the concepts of delegation and devolution are not well understood, and little has been written about these concepts in Singapore jurisprudence.

2 The second part of this article1 seeks to demystify the concepts of delegation and devolution by explaining the four methods available to government agencies when seeking to delegate or devolve a statutory power – (a) delegation under s 36(1) of the Interpretation Act;2 (b) delegation using specific statutory provisions; (c) the doctrine of implied delegation; and (d) devolution using the principle developed in Carltona Ltd v Commissioners of Works3 (“Carltona”). The third part4 discusses the limitations and uncertainties of the existing options of delegation and devolution, and analyses how these create inefficiencies in modern government. The fourth part5 suggests the following reforms to address these inefficiencies:

(a) amending s 36(1) of the Interpretation Act to remove the requirement for the President's approval before delegation may be effected;

(b) extending the Carltona principle to enable ministerial powers to be devolved to officers in statutory boards; and

(c) extending the Carltona principle to enable certain legislative powers to be devolved.

II. Options available to government agencies

3 As a starting point, it is important to note the conceptual difference between delegation and devolution using the Carltona principle. Delegation requires a distinct act by which power vested in oneself is conferred upon some person not previously competent to exercise it.6 Once the power is conferred, the delegate exercises that

power in his own name.7 Accordingly, the exercise of that power is legally an act of the delegate and not the original holder of that power (“principal”), whether or not the principal is constitutionally responsible for acts of the delegate. On the other hand, devolution using the Carltona principle enables officials within the ministry and departments headed by a minister to exercise the minister's powers in the minister's name without the need for any formal delegation of authority or specific act of authorisation.8 An official to whom the minister devolves a power (“devolvee”) exercises the devolved power as the minister's alter ego,9 and not in a separate legal capacity. Accordingly, the exercise of that power by the devolvee is legally and constitutionally an act of the minister, for which he continues to be responsible.10

A. Section 36 of the Interpretation Act

4 Section 36(1) of the Interpretation Act is the only provision of general application that enables delegation of any power or duty of a minister that is not legislative in nature. A delegation under s 36(1) requires the President's approval and must be made by notification in the Gazette. Any conditions, exceptions and qualifications to the delegate's exercise of the delegated power must also be determined by the President.11 The President must act on the advice of the Cabinet or of a minister acting under the general authority of the Cabinet in giving such approval and determining such conditions, exceptions and qualifications.12 This is because the powers in s 36(1) are not among the President's discretionary powers provided under the Constitution of the Republic of Singapore13 (“Constitution”). Section 36(1) has often been used to delegate ministerial powers to permanent secretaries, public officers of lower grades, and even statutory board officers and other ministers.14 Section 36(4) enables the delegating minister to continue to exercise the delegated powers or perform the delegated duties notwithstanding the delegation.15

5 A practical question that may arise from a delegation made under s 36(1) is whether a delegate may continue to abide by internal guidelines determined by the delegating minister in exercising his delegated power. The answer appears to be “no”. A delegate may consider internal guidelines determined by the minister as a matter of administrative practice but cannot be bound by such guidelines. This is because it is a fundamental rule for the exercise of discretionary power that an administrative decision-maker must not fetter the discretion given to him.16 While the delegate may consider such guidelines when exercising his powers, he must exercise genuine discretion and be prepared to hear out individual cases or deal with exceptional cases.

B. Specific statutory provisions

6 Legislative provisions that expressly enable delegation in the context of specific legislative schemes are frequently found in the statute books and are usually expressed using one of three methods. The first method is to expressly enable the principal to delegate his powers to specific persons, subject to restrictions specified in the provision. Such provisions are commonly found in the authorising acts for statutory boards. A recent example is s 29(1) of the Enterprise Singapore Board Act 2018,17 which enables the board to delegate any of its functions or powers to specific persons subject to conditions or restrictions as the board thinks fit.18 Section 29(2) requires delegation to be effected via written notice to the delegate, while s 29(3) specifies restrictions on the powers that may be delegated. Powers that may not be delegated include the power to make subsidiary legislation, the power to delegate, and any other power declared by the Act to be non-delegable.

7 The second method is to statutorily define a principal to include his deputies or assistants, who will then be able to exercise all of the principal's powers without the need for delegation. An example is s 2 of the Legal Aid and Advice Act,19 which defines “Director” as “the Director of Legal Aid appointed under section 3 and includes a Deputy Director and an Assistant Director of Legal Aid”. Another example is s 2 of the Supreme Court of Judicature Act,20 which defines “Registrar” as “the Registrar of the Supreme Court and includes the Deputy Registrar and the Assistant Registrars”.

8 The third method is for the statute to confer the principal's powers on an “authorised officer”. This displaces the application of the common law principle of ostensible authority in respect of these powers, thereby ensuring that only a consciously decided class of persons may exercise the powers. No delegation is necessary where this method is used. An example is s 3 of the Government Contracts Act,21 which provides that all contracts made outside Singapore on behalf of the Government may be made by a person generally or specially authorised by the Minister for Finance in writing to do so.22 Compared to the second method, the third method provides more flexibility because a person does not necessarily need to hold a specific office in order to be named as an authorised officer. Instead, the person is only required to fall within a category or description (if any) specified in the statute. For example, s 38(1) of the Active Mobility Act 201723 enables the Land Transport Authority of Singapore (“the Authority”), in relation to any provision of the Act, to “appoint as authorised officers for the purposes of that provision from among its employees and individuals performing duties in the Authority who are suitably trained to be authorised officers”.24 This gives the Authority a wide pool of potential delegates to choose from and deploy as and when its operational needs require.

C. Doctrine of implied delegation

9 The presumption in administrative law that a principal cannot delegate discretionary powers vested in him unless expressly empowered by statute to do so is a rule of statutory construction. It may therefore be rebutted by contrary indications found in the language, scope or object of the statute.25 This is the legal basis for the doctrine of implied delegation, which may be an option when no legislative provision exists to expressly enable delegation and s 36(1) of the Interpretation Act cannot be used. To determine whether the doctrine applies in a particular case, the court will interpret the statute and consider, among other things, the practices and needs of the official or authority in doing its work; whether the policy scheme of the statute is such that it cannot be easily realised unless the presumption is displaced; and whether Parliament had intended the official or authority to exercise the power personally.26

10 The majority of cases on the doctrine of implied delegation are decided on their facts and do not purport to lay down a universal test for when the doctrine applies.27 However, the following factors distilled from case law are relevant to the court's determination:

(a) the degree of control exercised by the delegating authority over the delegate, as well as control exercised by a third party in the form of an appeal or review from the delegate's decision;28

(b) the amplitude of the power, the impact of its exercise upon individual interests and the importance to be attached to “the efficient transaction of public business by informal delegation of responsibility”;29 and

(c) the scope of the power sought to be delegated. In particular...