1 Introduction

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.

  • 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.”

• 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).

  • 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 and logic, should unlawful 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 non-jurisdictional 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?

• 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?:

2.2 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...

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