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Published online by Cambridge University Press: 11 May 2017
According to the standard theory of administrative unlawfulness an act that is public law unlawful is, for that reason, invalid and of no effect in law. In this article I suggest that the theory ought to be rejected. I begin by outlining the standard theory as well as noting its endorsement by the Supreme Court in the case of Ahmed (no. 2). Having in the main part of the paper criticised the theory, I move to lay out an alternative: that unlawfulness signals not the invalidity of an administrative act but a duty on the part of the court to invalidate it. Noting that the alternative rests upon what appears to be a paradox – that unlawful administrative action may nonetheless have legal effect – I try to show why it is more apparent than real. Finally, I return to the decision in Ahmed (no. 2).
I would like to thank Joanna Bell, Hasan Dindjer, Mark Elliott, David Feldman, Fred Wilmot-Smith and the two anonymous reviewers for their comments as well as the Jurisprudence Discussion Group, Oxford, for allowing me to present an early version of this paper.
1 Ridge v Baldwin  A.C. 40, 80.
2 Anisminic v Foreign Compensation Commission  2 A.C. 147, 153.
3 Ahmed & Ors v HM Treasury (no. 2)  UKSC 5;  2 A.C. 534.
4 Associated Provincial Picture Houses Ltd. v Wednesbury Corporation  1 K.B. 223.
5 In this and in what follows, I assume against the ultra vires theory of judicial review – an understanding on which all conditions on the lawfulness of administrative action in the statutory context owe themselves ultimately to the intentions of the legislature. For the best defence of that view, see Elliott, M., The Constitutional Foundations of Judicial Review (Oxford 2001)Google Scholar.
6 Wade, H.W.R. and Forsyth, C.F., Administrative Law, 11th ed. (Oxford 2014), 247 CrossRefGoogle Scholar, citing in support Anisminic  2 A.C. 147; and Ridge  A.C. 40. Further support for the standard theory can be found in Director of Public Prosecutions v Head  A.C. 83, 104, per Lord Somervell (although cf. Lord Denning in dissent); and Boddington v British Transport Police  2 A.C. 143, 153–55, per Lord Irvine (although cf. 164, per Lord Browne-Wilkinson). See also Craig, P.P., Administrative Law, 8th ed. (London 2016), 733 Google Scholar.
7 Elliott, M., Beatson, J. and Matthews, M.H., Beatson, Matthews and Elliott's Administrative Law: Text and Materials, 4th ed. (Oxford 2010), 79, 81Google Scholar.
10 M. Elliott, “The Legal Status of Unlawful Legislation”  Public Law for Everyone. See further Secretary of State for the Home Department v JJ and others  UKHL 45;  1 A.C. 385, at –, per Lord Bingham; and Ahmed (no. 2)  UKSC 5;  2 A.C. 534, at .
11 See Ridge  A.C. 40, 80, per Lord Reid.
12 For discussion of this implication of the standard theory, see ibid., at p. 92, per Lord Evershed. The analogy with contract also helps to motivate this aspect of the picture. When a court rules that a party has failed to meet a condition on the exercise of a power in a contract it is, if accurate, issuing a decision which describes an existent state of affairs. The court is not making it the case there is no legally effective exercise of private power, it is authoritatively affirming that this is so.
13 Ahmed & Ors v HM Treasury  UKSC 2;  2 A.C. 534.
14 Ahmed (no. 2)  UKSC 5;  2 A.C. 534.
20 This analysis is corroborated by Forsyth: “For the majority, once the court has in the exercise of its judgment concluded that an order is invalid then it is known to be void; and it would obfuscate the effect of that judgment to seek by the exercise of remedial discretion to vivify the void act.” See Forsyth, C.F., “The Rock and the Sand: Jurisdiction and Remedial Discretion” (2013) 18 JR 360, 372Google Scholar.
21 Smith v East Elloe Rural District Council  A.C. 736, 769–70.
22 As Lord Morris made clear “If the appellant had bowed to the decision of the watch committee and had not asserted that it was void, then no occasion to use [the] word would have arisen.” See Ridge  A.C. 40, 125.
23 F. Hoffmann-La Roche & Co. AG v Secretary of State for Trade and Industry  A.C. 295.
24 See ibid., esp. at pp. 322, 341. Although cf. R. v Wicks  A.C. 92, 116, for Lord Hoffmann's contrasting interpretation.
25 See Wade and Forsyth, Administrative Law, p. 251. The analysis is corroborated in Craig, Administrative Law, pp. 739–40. The genesis for the view is to be found in Wade, H.W.R., “Unlawful Administrative Action: Void or Voidable? (Part I)” (1967) 83 L.Q.R. 499, 512–18Google Scholar.
26 So Taggart says, for example, that Wade viewed “administrative action as void from its inception – ‘hypothetically a nullity’ in his words – and that this principle is rooted in the absolute theory of invalidity. Unlawful administrative action is [however] accepted or treated as valid until successfully challenged, whereupon the ‘hypothetical’ voidness [of the act] is recognized”. See Taggart, M., “Rival Theories of Invalidity” in Taggart, M. (ed.), Judicial Review of Administrative Action in the 1980s: Problems and Prospects (Auckland 1986), 89 Google Scholar.
27 Forsyth, “The Metaphysics of Nullity”, p. 144.
29 Wade, “Unlawful Administrative Action (Part I)”, p. 516.
30 This much is shown by the fact that had Ridge not challenged the decision within the appropriate time limit he would not have been able to proceed directly with a claim relating to his pension rights, collateral challenge being available only when issues going to unlawfulness are raised as a defence.
31 This explains why, even if the relevant order had turned out to be unlawful, the court would have been justified in granting such a remedy.
32 The relevant sections of Lord Diplock's speech are to be found in F. Hoffmann-La Roche & Co. AG  A.C. 295, 366–67. See, for this interpretation, R. v Wicks  A.C. 92, 115; Boddington  2 A.C. 143, 155, 173–74; Elliott et al., Administrative Law, pp. 85–90; and Wade and Forsyth, Administrative Law, p. 249.
33 Wicks  A.C. 92, 115.
34 See for example, the Acquisition of Land Act 1981, s. 23.
35 See, on this point, Smith  A.C. 736, 750–51, 769–70; and R. v Secretary of State for the Environment, ex parte Ostler  Q.B. 122, 135–36.
36 Wade, “Unlawful Administrative Action (Part I)”, p. 512.
38 Elliott has suggested an alternate reading of Wade's argument in accordance with which he is not “contending that unlawful acts can become valid” by virtue of the passing of time limits: “Rather, [Wade] suggests that if it is impossible to challenge an act which is suspected of being unlawful, then it must be treated as valid.” But for the courts to be under a duty to treat an administrative decision as legally binding is just what it is for what it is for that decision to be valid. For Elliott's argument, see Elliott et al., Administrative Law, p. 92.
39 See Anisminic  2 A.C. 147, 170–71, per Lord Reid. For discussion, see Wade and Forsyth, Administrative Law, pp. 113–14.
40 Head  A.C. 83, 112. On the history of the usage of these terms in public law, see Craig, Administrative Law, p. 746.
41 Elliott, for example, suggests that the following is the fundamental issue: “Is unlawful administrative action void or voidable? … If action is voidable, then it is to regarded perfectly valid unless and until set aside by a competent court …. However, if unlawful action is void, then it is invalid simply by virtue of its unlawfulness.” Elliott et al., Administrative Law, p. 79. See also Wade and Forsyth, Administrative Law, pp. 254–55; Ridge  A.C. 40, 125–26; and Boddington  2 A.C. 143, 153–57.
42 Wade, H.W.R., “Unlawful Administrative Action: Void or Voidable? (Part II)” (1968) 84 L.Q.R. 110 Google Scholar. See also Forsyth, “The Metaphysics of Nullity”, pp. 141–42.
43 It is important for these purposes that the courts are clear about the concept of an unlawful decision. As David Feldman has recently emphasised, an unlawful failure to give reasons in the aftermath of an administrative act, for example, should not result in the court invalidating the initial decision but in their requiring the administration to make public the grounds for it. It is only in the context where the unlawfulness properly bares on the decision in question that the appropriate response is to invalidate it; an unlawful failure to act should not be implicated in the analysis of lawful action. See Feldman, D., “Error of Law and Flawed Administrative Acts”  C.L.J. 275, 291, 304–06Google Scholar.
44 See e.g. Durayappah v Fernando  2 A.C. 377.
45 Smith  A.C. 736, 769–70. Michael Taggart's important contribution to the debate on administrative unlawfulness takes us partway to this conclusion. “A decision tainted by jurisdictional error”, he tells us, ought to be viewed as “valid and effective in law unless and until it is retrospectively invalidated”. But his account leaves open whether the courts are under a duty to invalidate such decisions as well as the basis for their interim validity. See Taggart, “Rival Theories of Invalidity”, pp. 90–93.
46 Forsyth, “The Metaphysics of Nullity”, p. 157. See also Boddington  2 A.C. 143, 154–56, per Lord Irvine (although cf. 165, per Lord Slynn).
47 On collateral attack as a defence see Wandsworth London Borough Council v Winder  A.C. 461, 509–10; and Boddington  2 A.C. 143, 151–52.
48 For ease of exposition, I am setting aside cases in which the administration has power under the prerogative. The same analysis applies as in the statutory case, however.
49 For those who support the ultra vires theory of judicial review – in accordance with which all conditions on the lawful exercise of statutory power are to be found in the relevant statute – all forms of administrative unlawfulness will go to this stronger objection.
50 Kelsen was one of the first authors to see this phenomenon clearly. See Kelsen, H., Pure Theory of Law, trans. Knight., M. (Berkeley 1967), 267–70Google Scholar.
51 Joseph Raz highlights this point by contrasting the role of the courts and subjects as interpreters of the law: “The difference between a court and a private individual is not merely that courts are provided with better facilities to determine the facts of the case and the law applying to them. Courts have power to make an authoritative determination of people's legal situation. Private individuals may express their opinion on the subject but their views are not binding.” See Raz, J., The Authority of Law: Essays on Law and Morality, 2nd ed. (Oxford 2009), 108 Google Scholar, and more generally 105–11.
52 The story is complicated by the fact that many senior courts not only have the power to interpret their own jurisdiction but also to deliberately change certain aspects of their jurisdiction. A good example of the latter phenomenon is evidenced by the statement of Lord Gardiner in 1966 where he declared that the House of Lords would henceforth have the capacity to depart from its own rulings in order to achieve justice: Practice Statement  3 All E.R. 77.
53 As Raz notes: “The fact that a [body] may make a binding decision does not mean that it cannot err. It means that its decision is binding even if it is mistaken. My declaration of the legal situation is not binding at all because it is not binding if it is mistaken. To be a binding application of a norm means to be binding even if wrong, even if it is in fact a misapplication of the norm”: see Raz, The Authority of Law, p. 108.
54 It is worth pointing out that the fact that administrative bodies have such a power of interpretation says nothing about the extent to which the courts should be willing to defer to them in their initial understanding of the law.
55 As Kelsen notes: “It is undeniable that there are cases where something, especially a command which claims to be a legal norm, need not be so regarded by anybody … without, in fact, an order of nullification rendered by a special organ being necessary – for example, if a patient in an insane asylum issues a ‘statute’.” See Kelsen, Pure Theory of Law, pp. 277–78.
56 Entick v Carrington (1765) 95 E.R. 807.
57 Lord Hope, who gave the minority judgment in Ahmed (no. 2), went some way to achieving this task, although his judgment too involves a number of contortions. Having agreed with the majority that the Terrorism and Al-Qaida orders were of no effect in law he went on, nonetheless, to declare his support for the suspension of the court's order quashing them. In favour of this approach he cited the “practical advantage” to the treasury that such an order “would not be ignored by the banks and other institutions, which would continue to give effect to the prohibitions and obligations in [the Terrorism Order] and [the Al-Qaida Order] until they were directed otherwise by an order of the Court”. This much is true of course, but the reason that the banks would not have ignored the Government's orders until quashed was because until that time they would continue to have legal effect. See Ahmed (no. 2)  UKSC 5;  2 A.C. 534, at .
58 Forsyth, “The Rock and the Sand”, pp. 373–74.
60 A similar analysis prevailed in the case of Secretary of State for the Home Department  UKHL 45;  1 A.C. 385. Here a statutory regime made provision for the court to give directions to the Secretary of State for the revocation or modification of unlawful orders made under the Act. The majority of the court held that the exercise of such a power was logically impossible, reasoning that since the Secretary of State had “no power to make [the order] in the first place, there is simply nothing to revoke” (at ). Lord Hoffmann, in dissent, had the better view: “The power to direct the Secretary of State to revoke or modify the order does not imply that the order was lawfully made. On the contrary, the power arises only if the order is found to have been flawed, that is to say, not lawfully made. Thus the grounds on which the judge refused to consider the exercise of the powers conferred … would simply write them out of the statute. But there seems to me no conceptual reason why Parliament should not say that if the exercise of a power is found to have been unlawful, the court shall have power to modify the order or direct the Secretary of State to modify it so as to make it lawful” (at ). For discussion of related issues, see M. Elliott, “Invalid Control Orders: Void or Voidable?”  C.L.J. 22.
61 For a recent attempt to square cases in which the courts suspend or modify the effect of findings of invalidity with the standard theory of administrative unlawfulness, see V.S. Nadhamuni, “Suspending Invalidity while Keeping Faith with Nullity: An Analysis of the Suspension Order Cases and Their Impact on our Understanding of the Doctrine of Nullity”  P.L. 596. Nadhamuni suggests that such cases function as an exception to the general rule that unlawful acts are “null and void”. By suspending the effect of a judgment declaring an administrative act to be unlawful, she suggests, the court creates “a voidable act”. But an order suspending the effect of the judgment of the court is one which delays legal change as opposed to itself making a difference to the law. Nadhamuni's argument falls short for the same reason as Wade's treatment of ouster and time limit clauses. In both cases the true effect is to disable the court from intervening as opposed to affecting the law itself. See ibid., at pp. 602, 609–13.
62 Ahmed (no. 2)  UKSC 5;  2 A.C. 574, at . It is worth noting that the capacity of the courts to suspend the effect of their judgments appears not only as a part of their normal jurisdiction under the civil procedure rules but also as an explicit aspect of certain statutory regimes. The devolution arrangements, for example, all contain provisions allowing the courts to suspend the effect of judgments declaring legislation made under these regimes to be ultra vires. In the case of Salvesen v Riddell  UKSC 22;  S.C. (S.C.) 236, –, the Supreme Court did exactly this, maintaining in effect a statute of the Scottish Parliament which violated the European Convention on Human Rights. For discussion, see Elliott, “The Legal Status of Unlawful Decisions”.
63 Whilst there is no logical conflict between the courts’ duty to invalidate unlawful decisions and their power to suspend the effect of judgments relating to such issues, there remains the possibility that too liberal an invocation of the latter would act so as to frustrate the practical effect of the former. As such, the courts should be reticent to use this power.
64 See, on this issue, Craig, Administrative Law, pp. 746–49; and Wade and Forsyth, Administrative Law, pp. 249–51.
65 As Wade and Forsyth put the point: “There are grave objections to giving the courts discretion to decide whether governmental action is lawful or unlawful: the citizen is entitled to resist unlawful action as a matter of right, and to live under the rule of law, not the rule of discretion.” Wade and Forsyth, Administrative Law, p. 596.
66 For a recent example of the courts exercising remedial discretion in the aftermath of a finding of unlawfulness see R. (Hurley and Moore) v Secretary of State for Innovation, Business and Skills  EWHC 201;  H.R.L.R. 374 and for a more general discussion of the issues relating to this topic see Walton v The Scottish Ministers  UKSC 44;  S.C. 67, at –, per Lord Carnwath.
67 Craig, Administrative Law, p. 747.
68 Wade, “Unlawful Administrative Action (Part II)”, p. 110. So we should resist Feldman's view that in deciding whether to invalidate unlawful administrative acts the courts ought to balance the “principle of legality” against a range of other considerations, including the requirement to achieve “sensible, morally justified outcomes where interest conflict”. The law, for the courts, must count as more than just one consideration among many. See Feldman, “Error of Law”, esp. pp. 285, 310–12.
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