England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		24 January 2014

1. LORD JUSTICE PITCHFORD: On 6 August 2013 the appellant was convicted by Deputy District Judge Watson, sitting at The Court House, Wakefield, of an offence that on 21 February 2012 he drove a motor vehicle on the M62 road between junctions 26 and 27 at a speed of 59 mph, in contravention of the M62 Motorway (Junction 25 to Junction 30) (Temporary Restriction and Prohibition of Traffic) Order 2011 ("the 2011 Order") made pursuant to Section 14 (1) (a) and (7) and Section 15 (2) of the Road Traffic Regulation Act 1984 ("the 1984 Act"). He now appeals against that conviction by way of case stated.
2. The appellant accepts that he drove his motor car on the M62 motorway at the place and time specified and that he did so in contravention of a traffic sign limiting his speed to 50 mph. He challenges the enforceability of the alleged offence on four grounds which, stated shortly, are as follows. (1) The 2011 order did not permit the traffic authority to impose different speed limits upon the stretch of road concerned at different times ("variable speed limits"); (2) the 1984 Act did not authorise the imposition of variable speed limits; (3) the 2011 Order is ultra vires the power given by the 1984 Act because it is signed and/or made by an employee of the highway agency; (4) by Section 121A of the 1984 Act, the traffic authority for the purpose of Section 14 is the Secretary of State. The Secretary of State had no power to "delegate" his authority to impose variable speed limits. For this reason, the variable speed limit by means of the order was ultra vires the statutory power.
3. The relevant parts of Section 14 of the 1984 Act are:

"Temporary prohibition or restriction on roads

(1) If the traffic authority for a road are satisfied that traffic on the road should be restricted or prohibited -

(a)because works are being or are proposed to be executed on or near the road; or

(b) .....

(c) .....

the authority may by order restrict or prohibit temporarily the use of that road, or of any part of it, by vehicles, or vehicles of any class, or by pedestrians, to such extent and subject to such conditions or exceptions as they may consider necessary.

.....

(4) The provision that may be made by an order or notice under the foregoing provisions is —

(a) .....

(b) any provision restricting the speed of vehicles;

but no such order or notice shall be made or issued with respect to any road which would have the effect of preventing at any time access for pedestrians to any premises situated on or adjacent to the road, or to any other premises accessible for pedestrians from, and only from, the road."

4. It is common ground that the traffic authority to which reference is made in Section 14 for present purposes is the Secretary of State for Transport. By Section 124 of the 1984 Act, any power of the Secretary of State to make an order by virtue of Section 14 shall be exercisable by statutory instrument. The deputy district judge assumed that the 2011 Order was laid before Parliament under either the negative or affirmative procedures. In my view, that assumption was not justified because the order does not specify that it was laid before Parliament at any stage. It was designated a local order made on 16 August 2011, coming into force on 31 August 2011. That does not signify that the intention to bring such an order into force did not receive attention. Section 16 of the 1984 Act empowers the Secretary of State to make regulations with respect to the procedure to be followed in connection with the making by him of any order under Section 14.
5. The Secretary of State made the Road Traffic (Temporary Restrictions) Procedure Regulations 1992, Regulation 3 of which makes provision, in addition to other things, for the publishing in advance of a notice by the traffic authority of intention to make the order in newspapers circulating in the area stating the reason or the purpose of the order, its effect and the day on which it will come into force. In the Recital the Order states that the Secretary of State, in exercise of the powers conferred upon him by Section 14 (1) (a), Section 14 (7) and Section 15 (2) of the 1984 Act, makes the following order. Article 2 specifies the roads and parts of roads to which the order applies; included is the stretch of the M62 motorway on which the appellant drove his car on 21 February 2012. Article 3 of the Order provides:

"3 Subject: as mentioned in Article 6, no person shall during the works period cause or permit any vehicle to be driven in the first length of eastbound carriageway, the first length of westbound carriageway, the first link roads or a slip road at a speed exceeding 60 mph and 50 mph."

Article 6 provides, so far as is relevant for present purposes:

"6 The provisions of Articles 3, 4 and 5 shall apply only during such times and to such extent as shall from time to time be indicated by traffic signs."

6. At the conclusion of the certified copy of the Order, with which this court has been provided, appeared the words "signed by authority of the Secretary of State M Lee", a team leader in the Highways Agency. The signature of Mr Lee is appended and it is dated 16 August 2011. It is common ground that the order was made on the date that it was signed. At the relevant time and place the Highways Agency had indicated, by means of traffic signs, a speed limit of 50 mph in purported accordance with Articles 3 and 6. It was this speed limit in breach of which the appellant drove on 21 February 2012.
7. As to the first and second questions raised by the appellant, it is argued that the words used in Section 14 of the 1984 Act and Articles 3 and 6 of the 2011 Order are insufficiently precise to constitute any authority for the imposition of a 50 mph limit at the time when the appellant was in contravention. Strict words, it is submitted by Mr Shrimpton on the appellant's behalf, are required in order to provide the power which the Secretary of State purported to exercise. In any event, he submits, the Order was ultra vires Section 14 since Section 14 did not give explicit power to the Secretary of State to impose variable limits at his discretion.
8. I cannot accept either of these arguments. Section 14 (1) gives a wide power to make an order which "restricts ..... the use of that road or any part of it by vehicles" to such extent and subject to such conditions or exceptions as they [the traffic authority] may consider necessary. In my judgment these words are apt to give power to the Secretary of State, he being the relevant traffic authority, to make any order restricting the use of a road or imposing conditions upon the use of the road as he considered necessary. The power is plainly wide enough in my opinion to embrace both temporal and geographical conditions. Mr Shrimpton felt unable to resist the observation that the Secretary of State would undoubtedly have had power under Section 14 to make an order imposing a speed restriction for a named period of time. That such conditions may include restricting the speed of vehicles using the road is made clear by Section 14 (4). There is nothing in Section 14, in my judgment, which, on the one hand, would permit the imposition of a temporary speed restriction for a specific length of time but prohibit, on the other, the imposition of a variable speed limit at different times depending upon the road conditions prevailing.
9. In this case the Secretary of State, for good reason, considered it necessary to impose a variable speed restriction. It is plain, having regard to the conditions for motoring on our motorways, that the necessity for imposing variable speed restrictions appears at certain times of the day. Article 3 of the Order provides that the restriction might be of 50 mph or 60 mph. Article 6 provides that the restriction, whether of 60 or 50 mph, would apply at such times and to such extent as shall, from time to time, be indicated by traffic signs.
10. It seems plain to me that the words used were intended to provide the traffic authority with the means of imposing differential speed restrictions, either to 60 or to 50 mph, as and when required and that means was granted by the device of utilising traffic signs.
11. Mr Shrimpton argued that the word "extent" in Article 6 applies not to the speed restriction but to the geographical length of road to which the restriction is to apply. I am prepared, for my part, to assume that he is correct. However that argument does not avail him because the opening words of Article 6 are "The provisions of Articles 3, 4 and 5 shall apply only during such times ..... ". In other words, the speed restriction, whether it is to be 60 mph or 50 mph, will apply only during times when it is so indicated by the traffic signs.
12. I agree with the conclusion of the deputy district judge. Reading Section 14 and Articles 3 and 6 together, the intention could hardly be plainer, and I reject the appellant's challenges on the grounds both of certainty and vires.
13. I turn to questions 3 and 4. The appellant argues that the power granted by Section 14 of the 1984 Act was granted to the Secretary of State. The Order made pursuant to it is signed by an employee of the Highways Agency. Furthermore, it is the Highways Agency that imposes the variable speed restriction and not the Secretary of State. It is submitted that the Secretary of State's duty is non-delegable. Mr Shrimpton recognises the existence of the Carltona principle, to which I shall come in a moment. But he submits that the Highways Agency is not an integral part of the Department for Transport, and the principle applies only to those in the position of Ministers in the Department. Secondly, he submits that the Carltona principle applies only to executive performance of administrative functions and not to the legislative function of making an order by means of statutory instrument.
14. Mr Shrimpton recognises the practical consequences of his argument should he be correct. The Secretary of State could only carry out the intention behind Section 14 of the 1984 Act read together with the 2011 Order were he to make the decision whether or not any particular road at any particular time of day under any particular conditions anywhere in England and Wales should be restricted by the means so provided.
15. In Carltona Ltd v Commissioner for Works and Others [1943] 2 All ER 560 (CA), the owners of factory premises were challenging the decision of the Commissioner of Works to requisition their factory during war time. The competent authority to exercise the power under Regulation 51 (1) of the Defence of the Realm (General) Regulations 1939 was the Minister of Works and Planning in his office as First Commissioner. In point of fact, the minister did not consider the matter at all. The decision was taken by an assistant secretary in the Ministry. As it happened, Regulation 51 (5) contained powers of delegation for the minister. There was no evidence of any purported delegation of the minister's function.
16. In a passage in the judgment of the Master of the Rolls, Lord Greene, commencing at page 563A, it was said:

"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, no doubt there have been thousands of requisitions in this country by individual ministries. 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 minister 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. 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 for 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."

17. I would respectfully observe that if the observations of Lord Greene as to the realities of departmental government were as he described them in 1943, then how much more apposite must they be to modern conditions in which administration decisions and secondary legislation occur every second of the working day.
18. It was submitted on behalf of the appellant that Lord Greene's observations in this respect were obiter dicta having regard to the delegatory power provided by Regulation 51 (5). If that is so, then it seems to me that it has acquired a powerful support in later cases to which I shall now come.
19. The Carltona principle has been followed in several later cases, including Lewisham Borough Council v Roberts [1949] 2 KB 608, R v Skinner [1968] QB 700 and Director of Public Prosecutions v Haw [2008] 1 WLR 379. In R v Secretary of State for the Home Department ex p Oladehinde [1991] 1 AC 254, the House of Lords held that immigration officers were Home Office civil servants to whom the Secretary of State was entitled to entrust or devolve deportation decisions on his behalf. Nothing in the Immigration Act 1971 limited the power to devolve deportation decisions under Section 3 (5) of the Act. The principle involved was not one of delegation. The immigration officers were, for this purpose, the means or alter ego by which the Secretary of State carried out his statutory responsibilities.
20. Of closer factual significance to the present case is the decision of the Divisional Court in R (Secretary of State for Social Security) ex p Sherwin CO/1724/95, 16 February 1996 (Lord Justice Kennedy and Mr Justice Latham). There, an official in the Benefits Agency, the alter ego of the Department of Health and Social Security, made a decision to suspend an income support/severe disability premium payable to the appellant. The issue for the decision of this court was whether the decision of the Agency, made under the authority of its chief executive, was to be regarded, as a matter of law, as the decision of the Secretary of State. Agencies created for the purpose of delivering services in accordance with the policy of the Department of State are even more familiar now than they were in the 1990s. The court in Sherwin examined the Framework document that explained the position of the Agency in relation to the Department of Health and Social Security which "acts on behalf of and in accordance with any directions, where appropriate, of the Secretary of State". Ministers - the Framework provided - remain accountable to Parliament for the full range of their responsibilities.
21. Following a close examination of the inter-relationship between the Agency and the Department, Lord Justice Kennedy concluded as follows:

"In my judgment, in the context of this case, the creation of the Benefits Agency has had no effect whatsoever on the operation of the Carltona principle. In addition to the cases to which I have referred, Mr Drabble referred us to a number of academic writings which I have read with interest. At the end of the day I came back to what was said by Lord Griffiths in Oladehinde. The decision was taken by a person of suitable seniority in the Agency (which was itself within the DSS) and it was taken by a person for whom the Secretary of State accepts responsibility. Therefore the Carltona principle applies."

22. Mr Justice Latham added:

"There may be circumstances in which an agency is established in such a way that a minister could no longer, on any sensible analysis, be accountable to Parliament for its actions. The report of the Efficiency Unit was alive to that particular problem. In my judgment however the Benefits Agency has been established in a way which does not create any such difficulty. The use of the word 'delegate' was perhaps unfortunate but it has to be read in context. The intention was to ensure that the administration of benefits was located within a structure which, so far as possible, was a recognisable entity with lines of managerial responsibility intended to make it effective. That did not affect the constitutional position when, in accordance with the guidance which I have set out above, Mr Ash exercised the Secretary of State's power under Regulation 37. That power was exercised by Mr Ash as a civil servant within the Department of Social Security on the authority of the Secretary of State in circumstances where the Secretary of State was answerable to Parliament."

23. It was that constitutional responsibility which enabled this court to hold that the Carltona principle applied to the decision made by the Agency on behalf of the Secretary of State. We have been provided with the equivalent Framework document for the Highways Agency whose foreward appears under the title of the Secretary of State. The document describes the duties of the Agency which are, in essence, to deliver the policy of the Department relating to the operation of the strategic road network, the active management of traffic, management and maintenance of infra-structure assets, delivery of road improvements, increasing road capacity, reducing congestion and maintaining strategic planning. At paragraph 14, the document makes that clear that "the Secretary of State is accountable to Parliament for the Agency" and, at paragraph 23, that the chief executive is also accountable to Parliament.
24. In my judgment the Highways Agency is the alter ego of the Department for Transport in the areas for which the Secretary of State accepts responsibility in Parliament, just as he does for the actions of civil servants housed under his departmental roof. It is plain to me that the Carltona principle applies with equal force to judgments made by the Highways Agency to manage traffic by imposing variable speed limits under the 1984 Act and the 2011 Order when conditions require, as it did to the Benefits Agency making decisions as to the proper payment of benefits. I conclude therefore that the administrative act of setting the appropriate speed restrictions, that is to say 60 mph or 50 mph, at appropriate times and on appropriate days in accordance with Articles 3 and 6 of the 2011 Order was lawfully performed by the Highways Agency acting on behalf of the Secretary of State under the Carltona principle.
25. However Mr Shrimpton attacks the Order itself on the ground that it was a legislative instrument, responsibility for which, he submits, could not be devolved upon either civil servants within his department or upon employees of the Highways Agency acting under the Framework.
26. I return to the Order itself. It states in terms that it is made by the Secretary of State and not by the Highways Agency. It is signed on the Secretary of State's behalf by Mr Lee but the signature does not signify that the Secretary of State did not make the Order. The appellant failed before the deputy district judge because he did not produce any evidence to rebut the presumption omnia praesumuntur. The position before us is precisely the same as it was before the deputy district judge, and I would, on this narrow ground alone, reject the appellant's argument.
27. I shall assume, alternatively, that the terms of the order, together with the signature appended, permits Mr Shrimpton to argue that the Carltona principle cannot be applied to the legislative function. The function delegated by Parliament to the Secretary of State was, in my judgment, an executive one. That is the purpose of delegation to departments of State. The form in which that executive function was to be performed was by means of a statutory instrument. It is common place for statutory instruments to be signed by officials within the Secretary of State's department. No one dreams of challenging the vires of the order so signed on the ground that it was not signed by the Secretary of State himself.
28. In the case of local traffic restriction orders in 2013, of which there were over 700, a very substantial proportion of them were signed by persons who did not reside under the Secretary of State's roof in the Department of Transport. It would, in my judgment, be completely unrealistic to think that the Secretary of State could give his personal attention to the traffic speed restriction orders needed to keep traffic on the motorways of England and Wales working as they need. Of course he must devolve the duty to make those orders to those properly qualified to make the judgment.
29. There is no previous authority explicitly upon the lawfulness of such orders. That may be because it is common knowledge inside and outside Parliament that large departments of state have to conduct their business in such a way otherwise the business would never be done. No one would consider that unwittingly Parliament has been approving an unconstitutional course, presuming wrongly that the Carltona principle applies to orders of the nature with which we are concerned.
30. It seems to me that, subject to the terms of the statute upon which the power is delegated to the Secretary of State, the Carltona principle does apply to the executive function of making orders in order to make use of an executive power provided by the principal statute.
31. Mr Shrimpton sought to rely on the decision of the Privy Council in King Emperor v Sarma and Others [1945] AC 14 to support his proposition that the principle cannot apply to the legislative function even if it is in performance of an executive power. In that appeal from the Federal Court of India, their Lordships concluded that the Governor-General of India had not purported to delegate a legislative function only he could exercise upon local government. He had legislated that local executive authority could make decisions as to the manner in which his promulgation should be implemented. The Privy Council was, accordingly, dealing with a different state of affairs, a different Parliamentary environment. Carltona was not cited and the Carltona argument was not addressed. In my opinion, the decision in King Emperor does not provide authority for the proposition that Mr Shrimpton advances.
32. Posing the question can the Secretary of State lawfully make traffic restrictions orders under Section 4 of the 1984 Act through the devolvement of his powers to authorise officials in the Highways Agency, I would answer in the affirmative.
33. I turn therefore to consider the questions posed for us by the deputy district judge. (1) Does the order, by stating that provisions of Article 3 shall apply only during such times and to such extent as shall from time to time be indicated by traffic signs enable the imposition of different speed limits at different times? To that question I would answer yes. (2) Does Section 14 of the Act allow orders to be made for different speed limits to be imposed at different times? I would answer the question yes. (3) Is the order ultra vires because it is signed by a team leader from the Highways Agency? I would answer no. (4) Does the fact that the Highways Agency will determine whether a speed limit should apply and if so whether that limit is 50 or 60 mph render the order ultra vires by purporting to delegate a power that cannot be delegated? I would answer that question no, adding, however, that I consider that question (4) does not accurately pose the question. This is a case of the Secretary of State acting through his authorised servants and agents by means of a devolvement, not by the delegation of a power to a named individual.
34. For the reasons I have given I would dismiss the appeal.
35. MR JUSTICE CRANSTON: I agree.
36. I add a few remarks about question 3 which raises an important issue of the hardy perennial of the democratic accountability for the making of subordinate legislation. As with other legislation, the 1984 Act confers powers on ministers to make more (?) detailed subordinate legislation. The reason is obvious. It would be impossible to cover everything in the Act itself in the necessary detail. Section 14 contains one such power - the power in Section 14 (1) my Lord has quoted - to make the type of order at issue in this case, the 2011 Order.
37. I note in passing the well-known report of the Committee on Ministers' Powers from 1932 that "order" is used to describe an instrument by which executive power is conferred. I note also that while Section 14 confers the power to make orders on the relevant traffic authority for the road, by virtue of Section 121A (1) of the Act the Secretary of State is the relevant public authority in the case of the M62 motorway.
38. While not mentioned by either side, Section 16 of the Act contains a power for the Secretary of State to make regulations with respect to the procedure to be followed in the making of orders under Section 14. The regulations which the Secretary of State has made under Section 16 are the Road Traffic (Temporary Restrictions) Procedure Regulations 1992, 1992 SI 1215.
39. Without going into great detail, it is important to note that these Regulations set out the general procedure to be followed before a temporary order is made involving advance publication in local newspapers and notification to various bodies as well as subsequent notice of the making of the order. As well as the specific provision such as that in Section 14 (1), the 1984 Act - again typically - contains some general provision about the making of subordinate legislation under it. Section 124 relates to the making of orders. Section 134 concerns regulations. In particular, Section 124 provides that the power conferred on the Secretary of State to make an order under Section 14 and other sections of the Act it identifies shall be by means of statutory instrument (Section 124 (2)). Section 124 does not contain any provision for Parliamentary control of orders made under the Act. By contrast, Section 134, dealing with regulations under the Act, provides that regulations made under sections which are specified shall be subject to annulment by either House of Parliament (the negative procedure). Regulations under Sections 86 and 140 of the Act shall not have effect unless approved by a regulation of each House of Parliament (the affirmative procedure).
40. As my Lord has said, the deputy district judge was incorrect in his assumption that the order was laid before Parliament.
41. As with all statutory instruments, orders under the 1984 Act are subject to the procedures laid down in the Statutory Instruments Act 1946 and the Statutory Instruments Regulations 1947, SI 1948 1, regarding the certification, registration, numbering and publication. Under Sections 2 and 3 of the 1946 Act, immediately after its making a statutory instrument must be sent to the Stationery Office for these purposes. The 1947 Regulations also provide for the responsible minister to classify a statutory instrument. In this case it was classified as local. The issue of a statutory instrument is noted on the day following its publication in the Stationery Office Daily List. In this case, Daily List No 161 Tuesday 23 August 2011, the order in issue in this case was listed along with when it was issued (22 August) and made (16 August) and was to come into effect (31 August). Its classification - Local - was also set out. The Daily List also stated that hard copies would not be printed. Of course it was available electronically.
42. I agree with my Lord that no issue of delegation of legislative power arises in this case. The dictum of Lord Simon, Lord Chancellor, in his advice for the Privy Council in King Emperor v Sarma and Others [1945] AC 14, has no purchase. On its face, the order was made by the Secretary of State, not by any official. Certainly an official, Mr Lee, signed the order and it was made at that point but, as a matter of law, it was the Secretary of State who made the order. Under the Carltona doctrine, the official who signed it did so as the alter ego of the Secretary of State. So any issue in this case concerns whether Mr Lee could sign the order, not whether he could make it. As my Lord has pointed out, there was no evidence that Mr Lee did not have authority to sign the order. We have evidence of Mr Lee's position at the Highways Agency and that he had signed other orders of this nature. There can be no suggestion whatsoever that he did not have the authority to sign it.
43. If, in law, the power to make this order was exercised by the Secretary of State, the reality was undoubtedly somewhat different. Although the position of the minister for roads in the department might be different, it is unlikely that the Secretary of State himself was aware of the details of this and many of the other similar orders made under his name. This raises the issue of democratic accountability which is at the heart of Mr Shrimpton's concerns. The answer to this is that although the 2011 Order was not subject to the same Parliamentary control as were regulations made under the Act, it was subject to the democratic controls and prior consultation with the community and its subsequent registration and publication by the Stationery Office as a statutory instrument. Questions about it, including its making, could be raised in Parliament in the ordinary way. There has always been a possibility of judicial review. And, as this case demonstrates, there has always been the possibility of collateral attack.
44. As my Lord has pointed out, there is also the accountability of the Highways Authority (sic) and its officials, as set out in the Highways Authority's (sic) Framework document. It may be that accountability in the making of this type of order could be improved. That however is a matter for Parliament.
45. I would answer the questions in the manner proposed by my Lord, and also dismiss this appeal.
46. MR SHRIMPTON: My friend has been gracious enough to indicate that he does not propose to apply for costs, but I will let him speak for his client.
47. MR JARVIS: The applicant is publicly funded. We do not make application for costs.
48. MR SHRIMPTON: I am grateful. My friend was kind enough to give an indication. I respectfully thank him for the courtesy he has shown as counsel for the DPP. I hope it has been reciprocated.
49. LORD JUSTICE PITCHFORD: Thank you both for the interest - not always on the point - and the courtesy and moderation with which you both addressed us.
50. MR SHRIMPTON: I am not always thanked for my moderation in my submissions. There are only two remaining matters. Might I have the usual order regarding legal aid assessment?
51. LORD JUSTICE PITCHFORD: Would you give us the precise form of words you would like us to use.
52. MR SHRIMPTON: I was hoping my Lord would not ask that question. Detailed assessment by the court's taxing officer in accordance with the Legal Aid Act and Regulations. That is not a terribly sophisticated way of putting it. In the old days one asked for legal aid taxation; that has now gone. Can I ask for detailed public funding assessment?
53. LORD JUSTICE PITCHFORD: Yes.
54. MR SHRIMPTON: I am grateful.
55. Secondly, in relation to questions 1 and 2, I accept they are not questions of public importance. Questions 3 and 4 and your Lordship's view that in making a statutory instrument either the Highways Agency or the Secretary of State were exercising executive as opposed to legislative functions, in my submission, raise points of law of general public importance within the meaning of the Administration Act 1960. Might I respectfully ask your Lordships to grant both a certificate limited to these points and also permission to appeal to the Supreme Court, as the making of this order - if it is to be upheld - does in my submission reveal serious deficiencies in the way in which this country is governed. There is a democratic deficit to be addressed.
56. LORD JUSTICE PITCHFORD: This is a criminal cause or matter - correct?
57. MR SHRIMPTON: Yes.
58. LORD JUSTICE PITCHFORD: Therefore, you go where on appeal?
59. MR SHRIMPTON: On appeal to the Supreme Court we leapfrog the Court of Appeal. We go to the Supreme Court but there has to be a certificate. It is only if the point of law is of public importance.
60. A similar situation arose in Metric Martyr. Lord Justice Laws and Mr Justice Crane were gracious enough to grant me a certificate and then left the issue of permission to the Supreme Court (it was then the House of Lords). I then argued the case in the House of Lords for oral permission. Without a certificate I cannot plead so I must have a certificate if there is to be a further appeal. If your Lordships then refuse me leave but grant a certificate, that leaves the Supreme Court as to whether they wish to hear the case or not.
61. LORD JUSTICE PITCHFORD: We need to retire for a moment or two, Mr Shrimpton, to consider that because both of us have dismissed the appeal on a narrow basis. I think we need to have a discussion about that.

(Adjourned)

62. LORD JUSTICE PITCHFORD: Mr Jarvis, we would like to hear from you. Can you give us any assistance?
63. MR JARVIS: I can try to give you assistance. I have done a little research on this just while my friend was making his submissions.
64. Given that your Lordships rejected the appeal on a narrow point, that would not, we suggest, give rise to any general matter of public importance. You went on to make certain assumptions in favour of the appellant, to say we dismiss the wider point too. The Crown's position is and always has been that the outcome of this was a foregone conclusion - but that what the appellant was trying to do was to re-invent the wheel by suggesting that decades' worth of administrative practice had been as a result of a constitutional misunderstanding by Parliament, and rather trying to carve a large constitutional issue out of what was a very straightforward simple criminal matter. We would not submit that this is a matter that carries with it an issue of general public importance. It is a matter for the court whether you form that view.
65. LORD JUSTICE PITCHFORD: If there was evidence to the effect that this order was in fact made by an official of the Highways Agency acting on behalf of the Secretary of State then it would be an important constitutional matter, would it not? I say that because there has not been authority I am aware of - at this level - on the issue of mistakes in the statutory instrument.
66. MR JARVIS: That is the position. I answered the question you posed to me earlier on. I am unaware of such a case. Whether the absence of authority makes it a matter of general public importance, it rather seems to us - the submission we make - is that nobody has thought to argue it because it is, we suggest, obviously unarguable; so obvious that it does not require the Supreme Court to indicate. There is no authority that one will find in the Weekly Law Reports saying the sky is blue or the night is black. That is because these are such obvious propositions that they do not need judicial grounds for them. We suggest this falls into that category very much.
67. LORD JUSTICE PITCHFORD: Is it necessary, were we to certify, to specify the question as it is in the Criminal Division of the Court of Appeal or not?
68. MR JARVIS: Under the Senior Courts Act your Lordships would have to formulate the question, probably re-formulate it. What I was not certain of until I checked was whether you are effectively bound by the way the deputy district judge formulated the questions. So if you were to certify a question, would you effectively have to adopt the question that he posed. The answer, from what I can read, seems to be not. You would be at liberty to re-cast those questions if you felt there was a better formulation that gets more to the heart of the issue. But there would need to be - - I suppose it would be in the Criminal Division, and your Lordships identifying what that question is and either granting leave or not as you saw fit. (Pause)
69. LORD JUSTICE PITCHFORD: We would like you both to make written submissions. First of all, I would like to see chapter and verse of the application you are making so I can consult the rules. Secondly, would you give consideration to the terms of any question you wish to pose and make such submissions as you wish as to whether we would so certify?
70. Is seven days enough time for you?
71. MR SHRIMPTON: Yes. The only issue is I have taken a rough note of judgment - it is in my handwriting, it is therefore very rough - as to whether the transcript could be made available. We anticipate that we could have a transcript within seven days.
72. LORD JUSTICE PITCHFORD: Let me interrupt you. Neither of us thinks that it is necessary for you to have a transcript. You are already steeped in the issue.
73. MR SHRIMPTON: Seven days is enough.
74. LORD JUSTICE PITCHFORD: Seven days. We will then make a decision in writing, unless we invite any further submissions, both as to leave and certification.
75. MR SHRIMPTON: I am grateful.
76. LORD JUSTICE PITCHFORD: We do not want longer than two sides of A4.
77. MR SHRIMPTON: With my propensity for prolixity, I have made a careful note.