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Validity And Collateral Challenge Notes

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Administrative Law: Validity and Collateral Challenge 1


Administrative acts may be unlawful for a variety of reasons - the decision maker may make a jurisdictional error of law by misinterpreting some statutory provision, or may act under the influence of bias, for an improper purpose or for any other ground of judicial review. But there is a question of what unlawfulness actually is, and what the position is of individuals in regard to whom an unlawful decision is taken: can he ignore it, or must he obey it until it is set aside by a court?
In these lectures, we are concerned with two connected sets of issues:The legal status of unlawful administrative action. o

Must an individual in relation to whom an unlawful decision is made wait until it is quashed? (Voidable)

"If an action is voidable, then it is to be regarded as perfectly valid unless and until set aside by a competent court. When it is set aside, it is quashed prospectively, meaning that it is treated as having existed until it was quashed. Unless a competent person challenges the decision, it is for all practical purposes indistinguishable from a valid decision." o

Or can he claim that because the act is unlawful, it has no legal basis and he can safely ignore it? (Void)

"If an action is void, then it is invalid simply by virtue of it's unlawfulness. It does not, in strict logic, need to be quashed, because as a matter of law it never existed in the first place: it is void ab initio."The scope for challenging such action collaterally (i.e. indirectly in other proceedings, rather than directly in judicial review proceedings). o

If administrative action is merely voidable, its legality would only be open to challenge directly, by means of judicial review proceedings; collateral challenge would be impossible.


If they are void, however, the unlawful action never really (in strict logic) existed - so it would be open to a magistrates' court, for example, to conclude that the offence was ultra vires and void and therefore incapable of being committed.

These issues are related, to some extent, to matters considered earlier in the lecture course---viz the constitutional foundations of judicial review and concept of jurisdiction.

2 Is unlawful administrative action void or voidable?

2.1 Three approaches to the question

The first question, then, is whether unlawful administrative action is better described as void or voidable. That question can be approached in one of (at least) three ways:As a matter of (constitutional) principle administrative action be void or voidable?







Ultra vires versus common law justification for review.Classical UV theorists say they are necessarily void, as they are made ultra vires so are without power and do not exist.Common law theorists characterise them as merely voidable - illegality is not linked to vires or jurisdiction, so they are not necessarily void.

Jurisdiction as organising concept (or not). If we use jurisdiction as the organising principle, any error committed by a decision maker will be outside of jurisdiction, and will therefore be void.

[To understand why something might be voidable. UV does not help with a nonjurisdictional error of law - it is within the power of the decision maker. Certiorari lay to quash errors of law on the face of the record - so if a non-jurisdictional error appeared on the face of the record of a decision, the court might quash it. If the court did not quash it, it is within power and it stood. You have to go back to the days in which there were non-jurisdictional errors of law. In a more up to date context, s.101 of the Scotland Act - limits Scots' Parliament power to make law. They can clearly go beyond this jurisdiction. In such circumstances, the court may order the invalidity of the act of parliament to only take effect prospectively.]
As a matter of policy, would it be preferable to treat unlawful administrative action as void or voidable?2.2


Availability of collateral challenge (see below). CC is possible if the unlawful act is void, but is impossible if the act is merely voidable, as a direct challenge must be raised. This might inform how we are inclined to view the void/voidable line as falling. It depends on whether CC is a good thing!


Risk of administrative chaos: DPP v Head [1959] AC 83, per Lord Denning. This is the argument against recognising unlawful acts as void. The impacts that they have had since must necessarily fall down - the 'domino effect'.

As a matter of fact, which approach does the case law support?:

Pre-Boddington cases

On the latter question, it is necessary to consider a number of cases. First, note the following remarks of Lord Denning (dissenting on this point) in DPP v Head [1959] AC 83: If the order had been outside the jurisdiction of the Secretary of State altogether, it would have been a nullity and void; see The Case of the Marshalsea (1612) 10 Co. Rep. 68b at 76a. But that is not this case. The most that appears here is that the Secretary of State --- acting within his jurisdiction
--- exercised that jurisdiction erroneously. That makes his order voidable and not void. It is said that he made the order on no evidence or on insufficient materials. So be it. His error is a wrong exercise of a jurisdiction which he has, and not a usurpation of a jurisdiction which he has not ...
The Mental Deficiency Act 1913 made it a criminal offence to have sexual relations with someone under the care of a mental institution. The defendant in this case had had sex with such a patient. His defence (which succeeded) was that the orders that categorised her as 'mentally deficient' were void - they were issued without a valid certificate of 'mental deficiency'. She was therefore not legally under institutional care at the time, so the actus reus of the offence could not have been committed.

Denning: rejected the argument that the original order was void on the basis of jurisdiction determining validity (a decision outside of jurisdiction = void, within jurisdiction but erroneous=voidable) - concluding that the error was non-jurisdictional and thus voidable. But there is a question of whether his analysis of what went to the jurisdiction of the SoS (and thus what was voidable) was in actuality based on policy - that he was afraid of the possibility of 'administrative chaos'. If the certificates fell, the whole superstructure of administrative decisions premised on them would fall too - this is indeed one of the central arguments against a theory which provides that unlawful administrative acts are void.
[The theoretical basis behind the decision can be explained by the fact that Denning criticised the error as an 'error on the face of record', a now defunct species of error which were categorised as errors within jurisdiction. Today the dominant view is that any reviewable error omitted by a decision maker will be beyond jurisdiction in the broad sense - so if we use jurisdiction as the organising principle, it becomes clear that all unlawful actions must be void. See Boddington.]
Second, note the approach adopted by Woolf LJ in Bugg v DPP [1993] QB 473: The defendants were charged with the breach of byelaws (issued under s17 of the Military Lands Act 1892) as they had entered a military airbase. Their defence was that the area that they were prohibited to enter was not defined in clear enough terms in the bylaws to satisfy the statutory requirements, so didn't fulfil the clarity conditions laid down in the parent act and were therefore void. Held, Parliament's intention could not be to convict when the boundaries were not adequately defined, so Ds arguments were accepted. The reasoning is of note: It is possible to identify at least two different situations in which [a criminal court might be asked to treat a byelaw as invalid]. The first is where the byelaw is on its face invalid because either it is outwith the power pursuant to which it was made because, for example, it seeks to deal with matters outside the scope of the enabling legislation, or it is patently unreasonable. This can be described as substantive invalidity. The second situation is where there is what can be described as procedural invalidity because there has been non-compliance with a procedural requirement with regard to the making of that byelaw. This can be due to the manner in which the byelaw was made; for example, if there was a failure to consult.?

Substantive invalidity - renders the action void. o Invalid on it's face
? Outwith scope of enabling legislation
? Patently unreasonable Procedural invalidity - renders action voidable. o Non compliance with procedural requirement
? e.g. a failure to consult or irrationality (criminal court not equipped to ask these questions - therefore must be directly challenged)

It was therefore only substantive invalidity that renders the action susceptible to collateral challenge. The byelaws were indeed substantively invalid, and therefore void
- the offence could therefore not be committed and Ds were acquitted. Woolf LJ went on (relying on Lord Hailsham LC's speech in London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182) to say that 'except in the "flagrant" and "outrageous" case'---which Woolf LJ appeared to consider aligned with instances of

substantive invalidity---a statutory order, such as a byelaw, 'remains effective until it is quashed'.

2.3 Boddington

In Boddington v British Transport Police [1999] 2 AC 143, the House of Lords had occasion to reconsider the (related) questions of invalidity and collateral challenge: Transport Act 1962 authorised the making of byelaws. One of the byelaws made under the Act (In the British Railways Board's Byelaws 1965) made it an offence to smoke on the train where 'no smoking signs exhibited in a conspicuous position'. The train operator decided to completely ban smoking on all services, and put notices in all carriages. The defendant was charged with the offence. D argued that the byelaw did not authorise a train operator to completely ban smoking, and that the notices posted pursuant to it were ultra vires and hence invalid. He had therefore committed no offence because he had not smoked in a carriage in which a valid notice was displayed. Held the defendant was entitled to collaterally challenge the validity of the notices in criminal proceedings, but that challenge failed on the basis that the notices were actually issued within the authority conferred by the byelaw, because properly construed it did allow a train-wide (and even service-wide) ban. The fact that all of their Lordships agreed that the defendant could raise the alleged invalidity of the notices in his defence suggests that they also all subscribe to the view that unlawful administrative action is void. The boldest, and most straightforward, position was adopted by Lord Irvine LC, who criticised the approach adopted by Lord Denning in Head, arguing that it could not withstand Anisminic: Lord Denning had dissented on the basis of the historic distinction between acts which were ultra vires ("outside the jurisdiction of the Secretary of State"), which he accepted were nullities and void, and errors of law on the face of the relevant record, which rendered the relevant instrument voidable rather than void. He felt able to assign the order in question to the latter category. But in 1969, the decision of your Lordships' House in Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147 made obsolete the historic distinction between errors of law on the face of the record and other errors of law. It did so by extending the doctrine of ultra vires, so that any misdirection in law would render the relevant decision ultra vires and a nullity: see Reg. v. Hull University Visitor, Ex parte Page [1993] A.C. 682, 701-702, per Lord BrowneWilkinson (with whom Lord Keith of Kinkel and Lord Griffiths agreed, at p 692), citing the speech of Lord Diplock in O'Reilly v. Mackman [1983] 2 A.C. 237, 278. Thus, today, the old distinction between void and voidable acts on which Lord Denning relied in Director of Public Prosecutions v. Head [1959] A.C. 83 no longer applies. This much is clear from the Anisminic case [1969] 2 A.C. 147 and these later authorities. Irvine said that Denning's decision in Head turned on 'errors on the face of the record' - errors which aren't jurisdictional but can nevertheless be reviewed, a peculiar species, which are voidable rather than void. He pointed out that the modern, post-Anisminic orthodoxy is that all reviewable errors are jurisdictional errors; and that the void/voidable distinction 'no longer applies'.

Lord Irvine LC went on criticise and reject the approach adopted in Bugg, too: The Anisminic decision established, contrary to previous thinking that there might be error of law within jurisdiction, that there was a single category of errors of law, all of which rendered a decision ultra vires. No distinction is to be drawn between a patent (or substantive) error of law or a latent (or procedural) error of law. Irvine LC said that there should be no procedural/substantive invalidity distinction of the type that Woolf LJ had drawn in Bugg. Lords Browne-Wilkinson, Slynn, Steyn and Hoffmann agreed with Lord Irvine LC that the administrative measure at stake in Boddington was susceptible to collateral challenge, but that that challenge ultimately failed. However, their reasoning as regards the legal status of unlawful administrative action was not wholly consistent with Lord Irvine's.??

Lord Hoffmann: agreed with Irvine and Steyn. Lord Browne Wilkinson: o Juristic basis of JR is doctrine of ultra vires. o But not satisfied that a UV act is incapable of having any legal consequence pending judicial recognition of invalidity. Where people have conducted their lives in line with a UV act before it is recognised as such, the court would be 'rewriting history' by saying the act was not of any legal consequence in that time. o He expressed no view on the status of decisions prior to quashing - it is a matter of 'great contention and difficulty'. Lord Slynn: o The 'unscrambling'/domino problem. o Endorsed Wade's ideas of legal relativity Lord Steyn: o Also agreed that UV is the core of administrative law. o He also said though that unlawful measures can have legal consequences. o Endorses Forsyth's 'second actor' theory.

It is possible to impose a bit more order to the judgements in Boddington.?Most circumspect: Lord Slynn Clearest: Irvine and Steyn - UV is core of Administrative Law Lord Browne Wilkinson's analysis was not inconsistent with the voidness/ second actor approach.

There is a clear majority in favour of the view that unlawful acts are void as opposed to voidable, and unanimity on the fact that unlawful acts can be challenged collaterally. It therefore appears that there is a level of agreement that unlawful administrative action is void - if the byelaws had been voidable, then they would have been valid until quashed by a competent court.

2.4 Post-Boddington cases

It is also worth consider the following post-Boddington decisions:McLaughlin v Cayman Islands [2007] UKPC 50, [2007] 1 WLR 2839

A gvt. officer was dismissed in 1999, and he argued that that dismissal was unlawful because it was in breach of regulations governing the dismissal of civil servants, as well as natural justice. The local court awarded damages.

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