the legal effect of unlawful administrative acts.pdf

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Th e legal eff ec t of u nlawf ula d mini st rativ e acts: th e theo ry of th e seco n d act orexp lain ed an d deve lopedby Dr Christoph e r Forsyth

T H E C E N T R A L CONUN DRUM U N L AW F U L

A D MINISTRATIVE A C TS AR E T H E

O R E TICALLY V O I D Y ET FUNCTION A L LY

V O ID A B LE

The dec ided ca ses make it cle ar that an unlawful

administrative act is no act in law. L ord Reid in Ridge v

Baldwin [1964] AC 40 said it all:

Time and again in the cases I have cited it ha s been statedthat a decision given without regard to the pr inciples of n atural

justice is vo id, and th at was expresslydecidedin Wood v Woad

1874) LR 9 Ex 90. I see no reason to doubt these

authorities .

In Anisminic Ltd v The Foreign C ompensation Commissionand

another [19 6 9] 2 AC 147, the judgm ent of the House of

Lords actuall y depe nded upon the fa ct that the unlawful

administrative dec ision was a nulli ty. More rec ent

authori ty is fou nd in Director of Public Prosecutionsv

Hutchinson [1990] 2 AC 78 3 ,where Lord L owry sa id the

basic p rinciple is that an ultra vires enactm ent, such as a

byelaw, is void ab intio and of no e ffect . Many other casesto lik e effe ct coul d be cited. A n u nlawful administrative

act is thus un deniably void.

Unfortunat ely, it is equally clear that an unlawfu l

decision is oft en effec tive until set as ide by a court o r

other competent authority. And, if that u nlawful decision

is no t succ essfully ch allenged, it will turn out to be as g ood

as the most proper decision. T he position is summed u p

by the fo llowing well known dictu m from L ord Radcliffe s

speec h in Smith v East Elloe Rural District Council [1956] AC736 at 769:

An order, even i not m ade in goodfaith is still an act

capable of egal consequences. It bears no brand of nvalidity on

itsforehead. Unless the necessary proceedingsare taken at law to

establish the cause of nvaliditya nd to get it quashed or

otherwiseupset, it will remain as effectiveJor its ostensible

purpose as the most impeccableo f orders .

T his is a descr iption of an act, wh ich is voidable, i.e.

effective until set aside by a cour t of competent

jurisdiction. Yet, as we have seen, precede nt requires that

unlawful administr ative acts are void. Mo reover, it is

c ontrary to the doct rine of ul tra vires. This is because a

voidable a ct exists, for a time at least, in law. T hus there

m ust exist some power u nder w hich it is m ade. It follows

tha t a voidable act is intra tires - yet every unl awfu l

ad minis trative act must be ultra vires and void.

The doctrine of ultra vires is vital to modern

administrative law. It prov ides the cons titutional basis for

mo st o f judicial review, it ju stifies the classic approa ch to

oust er clauses (the reason ing of Anisminic v Foreign

C ompensat ion Commission [1969] 2 AC 147 d epends upon

the unlaw ful d ecision in question be ing ultra vires and void)and it is needed to ensure the availability of collateral

challenge. F or unless the c hallenged act is void it cannot

be raised collaterally bef o re a court that lacks p ower to

qu ash an unlawful act ad ministrative act, e .g. a

mag is trates court. And it has recently made c lear

(Boddington v British TransportPolice [1998] 2 WLR 63 9

(HL)) th at the absen ce of collate ral challenge un dermines

the rule of law and has conseque nces to o austere and

inde ed too authoritaria n to be c ompatible with the

traditions of the comm on law (L ord St e yn . Persons

could be se nt to gaol for doing an act that was n ot

unlawful I do not wish here to deb ate the merits of the

ultras vires doctrin e - which has be en critic ised bv some in

the recent past). T he details of the debate ar e set o ut in

Judicial Renew andthe Constitution (Hart, 20 00, ed. C F

Fo rsyth) .

So here is the central co nun drum that set me thinki ng

about this problem: unlawfu l adm inistrative acts are

A micus Curiae ssue 35 June J uly 2



th eoretically void yet functionally voidable. A s we have

seen this conundrum lies n ear the he art of ad ministrative

law - both in terms o f the constitutional justification for

our subject and more p ra gmatically in the ne ed for the

survival of collateral challe nge in order to buttr ess the rule

of law. Theory, if it is to pro vide a sound ba sis on which

administr ative law may re st, must resolve th is

c onundrum, whi le practice wit h suc h insecure andinconsistent theore tical foundations must be suspec t.

A P RESUMPT ION O F VA LID ITY IS NOT T H E

WAY TO D E A L W I T H THIS P R O B L E M

The most common way in the past of approaching this

problem has been to rely upo n a 'presumption of validity .

For instance, this is what Lord Diplock sa id in Hoffmann-

La Roche Secretary of StateJor Trade and Industry[1 975] A C

295 at 365:

Unless there is [a successfulchallenge to the validityof a

statutoryinstrument], the validityof the s t tutory instrument

and the legalityof acts done pu rsuant to the law declaredby it

are p resumed. ..' (Emphasis added).

B ut this is an unsatisfactory appro ach to the pro blem

because:

(1) It is contrary to the rule of law in that it allows

convictio n s to be founded on illegalities (e.g. ultra vires

subor dinate legislation creating offences is p resumed

valid until set a side by a court of com p etent

jurisdiction) - thi s was understood (and approved ) by

Lord Woolt in Bugg Director of Public Prosecutions

[1993] QB473.

(2) The effect of the presumption is authoritari an in that

it requires the ordinary citizen (who cannot af for d to

challenge questi on able decis ions in th e co urts ) to

accept as gospel everything that comes from

som ebodv in appa rent authorit y cf. Christie Leachinsky

[1947 ] A C 573 at 59 ('Blind unquestioning

obedien ce is the law of tyrants and sla ve s...').

(3) The presumpt ion undermine s the ultra v i r s doctrin e.

The power that su pports the validity of the unlawful

ad ministrative act (until set aside) must come from

somewhere. Thus there must be implied a genera l

warrant of powe r to officials to make decisions,

however wrong or gross . There is no such statutory

power.

(4) It is a blanket approach but there is no r easo n to

suppose that a blan ket approach is necessary or soun d.

A different respon se is needed in different

circum stances.

(5) The displacement of the presum ption requires t he

exercise of discretio n (by th e court) in m aking anappropriate order . But the rule of law sh ould not

de pend upon th e exercise of disc retion - ev en by a

judge.

T H E T H E O RY O F T H E SE OND A C TO R

R E C O N C I L IN G T H E E FFECTIV EN ESS O F

U N L AW F U L A C T S I N CERT AIN

C I R C U M S TA N C E S WI TH T H E C L A S S I C

PRINCI PLE O F A D M I N I S T R AT I V E LAW

had been aware of this conu nd rum and the great

difficulties with the p resump tion of validity for many ye ars

but had never got anywh ere near resolving them, until the

time ca me to write an essay for Sir William Wade's

Festschrift. decided, with some trepidation, to tackle this

mos t difficu lt of problems in my essay - which waseventually publi shed under the title of "The M etaphysic

of Nullity" - Invalidity, conceptual Reasoning and th e Rule

of Law at p. 141 of the Festschrift,w hich was entitled The

GoldenMetwand andthe Crooked Cord - Essayson PublicLaw in

Honour of Sir William Wade (OUP 1998, editors Fors yth

and Hare) . And the theory of the secon d actor is the

solution that reached after much cogitation ; it does, to

my satisfaction, reconcile the e ffectiveness of unlawful acts

in certain circumstances with th e classic principle of

ad minis trative law.

The nub of the theor y can be expressed in the following

words from "Th e Metaphysic of Nullity" - Invalidity,

Conceptual Reasoning and the R ule of Law at p. 159.

... unlawful administrativeacts are void in law. But they

clearlyexist inj ct and theyoften appear to be valid;and th ose

unaware of their invalidity maytake decisionsa nd act on the

assumption that these actsare valid. When th ishappens the

validityof these later acts depend upon the legalpowers of the

second actor. The crucial issueto be determined is whether the

second actor has legal powerto act validlynotwithsta nding the

in validityofthejirst act. nd it is determined by an anah/sis of

the la w against the backgroundof the am il iar proposition that

an unlawful act is void .

A lthough hedged a bout with jurisp rudence a nd abstract

analysis in the 'Th e Me taphysic of Nu llity', the theory

thus des cribed is relati vely simple. Unli ke believe all

other academic approache s to the issue , the theory of the

se cond acto r turns the focus away from the unlawful act

and on to the powers of the per son who acts believing th at

the first act is valid. All the diff ic ulties attendant upon

see ki ng some interim validity wi thin the first act are side

stepped; and thus th e classic principles of administra tive

law are reconcile d wi th the effectiveness, in appropriat e

case s, of acts taken in reliance upon unlawful

administra tive acts .

Perhaps it may be useful to give some e x amples. Let usstart with R Wicks[ 1997] 2 WLR 876. Here the accused

was charged w ith breach of a planning 'enf orcem ent

notice'. He had contested the validity of the n otice

unsuccessfu lly o n appeal to the Secretary of St ate, but

sought to raise it again as a defence to th e charge . The

House of Lords hel d th at a true construction of the

sta tutory words 'enfor cemen t notice' meant simply a

notice issued by the local planning authority th at was 2

Amicus uriae Issue 35 June July 200 1



formally valid, i.e. th e substantiv e validity of the

en forc ement notice was not a precondition to the

success of the p rosecution. Here the firs t act is the making

of the enforceme nt notice and the secon d act is Wick s

co nviction for brea ch of the notice. Clearly, while the

enforce ment notice h ad to exis t in fact it did not ha ve to

be legally valid in order for a valid conv iction to ensue.

Thus, h er e the second a ctor could act validly

notwi thstand ing the invalidity of the fir st act.

On th e other hand, con sider Directorof Public P rosecutionsv Head [1959] AC 83. Here the respondent was ch arged

with having carnal k nowledge of a mental d efective

contrar y to section 56( 1) (a) of the Mental Deficiency Act

1913, but th e certificate of two docto rs certifying that the

victim was a d efective and the Secreta ry of State s order

transf erring he r to an instituti on w ere themselvesdefect ive.

That mean t that th e cer tificate and orders we re void, yet

th eir validity was fu ndamental to the off ence . It followedthat the Co urt of Appeal quashed the conv iction and the

Dire ctor of Publi c Pros ecution s app eal to the House of

L ords was dismi ssed. Clearly, the vali dity of die sec ond act

- th e conv iction of the ac cused - depended upon the

validity of the first act, the victim s c ertification as a

defective. In such cases the invalidity of th e first act does

involve the unravelli ng of later acts, which re ly o n the first

act s validity. Howev e r, the voidnes s of the fi rst act doe s

not determine whethe r the second act is valid. That

d epends upo n the legal p owe rs of the later actor.

If th e theory of die second actor doe s reconcile th e

effectiv e ness of unlawful acts in ce rtain circumstances with

the classic princi ple of administrative law, the important

practical que stion remains: how can one determine when

the second ac tor has power to act validly notwithstand ing

th e invali dity of th e first act? We will return to this

q ues tion, but first I will consider the developm ents

subseq uent to the publica tio n of The M etaphysic of

Nullity .

D E V E L O P M E N T S SUBSEQUE NT T O T H E

P U B L I C AT I O N O F T H E M E TA P H Y S IC O F

N U L L I T Y

1) In Boddington v British Transport Police [1998] 2 WLR

639 (HL), the theory of the se con d actor as advanced

in The Metaphysic of Nullity ap p roved by Lord Steyn

(Lord H o ffmann concurri ng). It was not c ontradicted

by any of th e other law lords and th ere is not hing in

their sp eeches in consist ent w ith it. I m ust be very

gr ateful for this early rec ognition of the theory - it

wou ld doubtless otherwise have langui shed unsee n to rmany years.

2) Th en in R v CentralLondon County Court, ex parte London

[1999] WL R 1 , the theory of the s econ d actor was

dis cussed but n eithe r approved nor dis app roved, but

the analysis of th e case is consis tent with the theory.

3) In R v Governorof Brockhill Prison, ex parte Evans [2000]

WLR 84 3 (HL), the theory of th e second actor was

not discusse d but the o utcome of the case is consistent

\\ith th e theor y (the case concerned a prisoner whose

co nditional release date h ad been calc ulated by th e

p ris on governor in good faith on the law, as it was then

under stood. But in decisions made while she was

inc arcer ated, the Court of Appea l made clear that the

law had been misun derstood. The result w as that the

prisoner was released 59 days after she shoul d have

been. The int eresting point here is th at the first act -

ca lculating the date of rele ase - a nd the second ac t -

hold ing the applicant until th at da te - were performed

by th e same person - the prison governor. The

prisoner -recovered damages showin g that in fact the

validit y of the second act did require the validity o f the

first act).

(4) Then Flem ing and Ro bb in [1999 ] Judicial Review 248 criticised the theory in ter ms. The theory was

broadly welcom ed but, with respect, m isunderstood.

Fle ming a nd Ro bb accept that if the legality of th e

secon d actor s actions a re in is sue.. .the analysis begins

with an examination of the p owers of the second

actor , but they then go on to say that .. .the theory [of

the second actor] sug gests that whenever the second

actor (reason ably) relies on an unlawf u l administrat ive

act, that the re liance will be protected and the second

ac tor s acti ons will be j ustifi ed (at 256). But this is n ot

the theory of the second acto r.

Accordin g to the true theo ry, som etimes the second act or

will have power to act validly notwiths ta nding the

invalid ity of the first act as in A v Wicks)and som etime s he

will no t and th e second act too will be invalid as in DPP v

Head). Whether the validity of the first act is requir ed for

the validity of the second de pends upon the legal pow ers

of the second actor, which have to be determ ined by the

court fa cing this issue.

S O M E EX A MPLES O F TH E TH E O RYEXPRESS LY DEALT W ITH IN STATUTE

M ost often, of course, th is issue of whether the se cond

acto r has power to act in the event of the first act be ing

invalid is not expressly dealt w ith in the statute grantin g

powe r to the second actor. But so me times it is. And the re

are several stat utes, which address the issues expressly -

usually giving expr ess power to the second actor to act

even if the fir st act is invalid. Thus the Marriage Act 1949

provides in s. 48(2):

A marriage solemnised inaccordance with the provision of thisPart of his Act [second act] in a registered building which has

not been certified as required bylaw as a place of religious

wo rship [first act] shall be as valid as i he building had been

so certified .

And in section 49 (d) th e sam e Act provide s:

Am icus Curiae ss ue 35 June July 2



If any persons knowingly nd wilfully intermarry under the

provisions of his Part of his Act [se c ond act]. .. on the

authorityof a certificate [f irst act] wh ich is void by virtue of

su bsection (2) of section thirty-three o f this Act [limiting the

peri o d of validity of a certificatej.... the marriage shall be

vo id

It is inte re sting to no te th at all the examp les tha t havethus far foun d deal with ensu rin g that the sec ond actor has

pow er to act notwith standing the inva lidity of the first act.

TH E W Y F O RW R D

Where the po wers of the seco nd actor are not expressly

delim ited it is ne cessary to develo p prin ciples to g uide the

c ourts in deciding that issue as cal le d for y Flemi ng and

Ro bb in the followi ng passage: r o

The im portant question is: In what circumstances can the step

fro m reliance [on the validity of the f irst act] as a m tt er oj

fact to reliance creating lawfuljustification be taken? In ot her

words, in what circumstances is it right to give gr eater weight to

the principle of eg al certainty th n to the pr inciple that the state

is subject to the law. It is neither inevitable nor necessary that

thefa ct o f reliance should crea te a legal power. ... in each case

specificreasons [why the sec ond a ct is valid] need to be

adduced within a fr amework o f pr inciples. Thecriteria to be

ap plied should be consistent with thoseapplied by the courts in

criminal collateral challenge cases, as the underlying principles

are the same. The court ought to start the analysis with a strong

bias in favour of keeping the state within the law ... There isalways a danger that the protection of egal certaintymay slip

into the protection of administrative convenience .

A start has alr ead y been made by the Lord Ch ancellor,

w ho in his spe ech in Boddington sa id that a rest rict ion on

the availability of collate ral challenge i.e. se cond act

having pow er to act no t wit hs tanding the inv alidity of the

fir st act wo uld be the more readily infer red w h ere the

chall enge precluded was to:

.. . administrative acts specifically directed at the defendants,

where there h d be en clear a nd ample opportunity provided by the scheme of the relevant legislationfor those defendants to

challenge the legality of ho se acts, beforebeing charged with an

offence. By contract, where subordinate legislation ... is

promulgated which is of a general chara cter thefirst time an

individual maybe affected by that legislation is when he is

charged with an offenceunder it ... In my judgmen t in such a

case the strong presumptionmust be that Parliament did not

int end to deprive the accused of an opportunity to de fend himself

in the criminal proceedings .

Tw o further such p rinciple s may b e proposed: fir st,

where h um an rights wou ld be infrin ged u pon we re the ac t

of a secon d acto r to be unexpect edly invalid, then a court

may readily infer that the second actor has th at po wer to

ac t validly in the c ircumsta nces. Th e sa me principle must

wo rk the oth er way ro und. Where an a ct of the secon d act

wou ld infrin ge upon human rig hts if it were u ne xpectedly

valid, this may justif y an in feren ce that the second actor

lacked in th ose c ircumstanc es the power to act. This it

seems to me flo ws readily from section 3(1) of the Human

Rights Act 1998 .

Secondly, w he re it is plai n from the rele van t legis lation

that the first act is in tended to be rel ied upon by seco nd

actors and th at there wo uld b e substa ntial injust ice an d

adminis trative inconven ience if those secon d acts were

afterwards found to be void becau se of the invalid ity of the

first ac t, then th e cour t might i nfer a n intent t hat th e

se cond actor cou ld ac t validly notwithstand in g th e

inva lidity of the fir st act (N.B. I a m n ot suggesti ng a

balan cing of legal c ertainty a nd leg ality on a case- by-

case basis, but a ge neral principle relevant to the

interpre tation o f the sta tutes involv ed .

am consc ious as conclu de that these sug ges tions for

the way forwa rd are not as co ncrete as would like. But,

as the decided cases pr ovide the anvil upon w hich the

details w ill be beaten o ut the position might clarify and

more pre cise principles will emerge. W hat am sure about

tho ugh , is that it is only the theory of the second a ctor s

change of focus that all ow s such princ iple s to be

dev eloped an d ta kes this issu e of the effective ness of void

acts away fro m the vagaries of discretion an d into the

realms of law. ®

r hristopher For syth

Reader in Public Law, University of Cambridge

This article is taken fr om seminar given at IALS on 8 March

Ami cus uriae Issue 35 Jun e July 2001

the legal effect of unlawful administrative acts.pdf

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