The Concept of Nullity in Administrative Law: the UK Government’s Judicial Review Reform Project
In response to the report of the Independent Review of Administrative Law, the UK government launched a consultation period on several targeted reforms to judicial review. One of these relates to so-called ‘Cart’ judicial reviews, continuing the tortuous tale of the relationship between the UK’s tribunal structure and its superior courts. Another relates to clarifying the law of remedies, the topic of this post. To put it mildly, the reform proposals have been controversial.
Hanging over the remedial reform proposal is the issue of ‘nullity’. The problem the government perceives is that a series of recent UK Supreme Court decisions have cemented the proposition that unlawful administrative action is a nullity. Once declared to be unlawful by a court, the act complained of is automatically void ab initio; it never existed and — here is the key point — cannot be reanimated by judicial discretion.
In the unusual case of Ahmed (No. 2), the Supreme Court refused to place a stay on a declaration and a quashing order which had already been issued in respect of regulations concerning the freezing of assets. This was, to my mind at least, unsurprising: had the government wished the Supreme Court to stay its orders, it ought to have argued the point in the substantive hearing. Then in UNISON, the Supreme Court held that regulations were void ab initio, even though the facts giving rise to the illegality only came into existence after the regulations were made. And, of course, in the Case of Prorogations, the Supreme Court held that the illegality of the Prime Minister’s advice to the Queen to prorogue Parliament with the Brexit clock ticking down towards midnight meant that the prorogation was a nullity (see further here, pp. 19-21).
When an applicant establishes that an administrative decision is unlawful, the starting point is that a remedy will be granted and, indeed, that the remedy will have retrospective effect, even if some inconvenience will result: see, e.g., the recent decision of the High Court of Australia in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd  HCA 2.
But it is too far a step from this settled position to an absolutist approach to invalidity which treats any unlawful decision as void ab initio.
First, in numerous cases and on numerous grounds, the courts have exercised remedial discretion to refuse a remedy, for instance where relief would precipitate administrative chaos or interfere with the rights of third parties. Recently, in Bertrand v. Acho Dene Koe First Nation, 2021 FC 287, at para. 103, Grammond J straightforwardly suspended a declaration of unlawfulness of regulations made under the Indian Act providing for the suspension of elections during the COVID-19 pandemic, giving the federal government time to take lawful measures to remedy the situation. This type of remedial flexibility is a familiar feature of contemporary administrative law.
Second, this remedial flexibility coheres better with the historical foundations of judicial review of administrative action than does an approach based on an absolutist application of the concept of nullity. Put simply, the remedies available in administrative law matters originate from three sources: the common law (the prerogative writs); statute (declaratory relief); and equity (injunctive relief). Substantive and procedural administrative law is not and never has been contained in a coherent code. Rather, these remedial options arose at different times and for different reasons. The life of administrative law being experience and not logic, it unrealistic to expect conceptual neatness and wrong to insist upon it.
Third, as I have explained in previous posts, the classic decisions on which the absolutist position in relation to nullity is based, Anisminic and Boddington, are much more complex than allowed by the proposition that ultra vires action is void ab initio. As I wrote about Anisminic:
Second, it is wrong to think that the majority in Anisminic, in describing a determination of the Foreign Compensation Commission tainted by an error of law as a “nullity”, were engaged in an exercise in metaphysics. Again, Anisminic is sometimes taken as authority for the proposition that unlawful administrative decisions are nullities, that they never existed in the eyes of the law, with the corollary that judges should not have any discretion to refuse judicial review remedies. But this surely mischaracterises the exercise undertaken by Lord Reid and his colleagues in Anisminic. The reason they described the Commission’s determination that Anisminic could not make a claim as a “nullity” was to avoid giving effect to the ouster clause in s. 4(4) of the Foreign Compensation Act 1950. Interpreting the ouster clause narrowly — so as to exclude “nullities” from its ambit — was designed to protect fundamental constitutional principles: the right of a citizen to access the High Court; and the High Court’s capacity to ensure compliance by statutory bodies with the general law of the land. A broader interpretation would have permitted the Commission to make errors of law in discharging its quasi-judicial function of determining the rights of claimants to the fund administered by the Commission. Describing the Commission’s decision as a “nullity” was a pragmatic response, based on principles drawn from previous decided cases, to a threat to the separation of powers and rule of law posed by the ouster clause.
Rather, I argue, these cases are best understood by reference to the values which permeate every aspect of the contemporary law of judicial review of administrative action. My close reading of Boddington:
…suggests that values can influence the classification of a bye-law as void or voidable (or, to eschew the language of conceptualism, whether an invalid bye-law can nonetheless have continuing effects): here, good administration (a concern to avoid chaos) and democracy (a concern to give effect to provisions passed by Parliament) are seen to play a role. Lord Browne-Wilkinson certainly argued that good administration could be relevant: “I am far from satisfied that an ultra vires act is incapable of having any legal consequence during the period between the doing of that act and the recognition of its invalidity by the court. During that period people will have regulated their lives on the basis that the act is valid. The subsequent recognition of its invalidity cannot rewrite history as to all the other matters done in the meantime in reliance on its validity”. As Lord Slynn of Hadley put it, “[t]he unscrambling may produce more serious difficulties than the invalidity”.
It is true that the Lord Chancellor went on to insist upon “the strength of the presumption against a construction which would prevent an individual being able to vindicate his rights in court proceedings in which he is involved”. But is this not simply to say that, in a criminal prosecution where, in Lord Steyn’s words, “where the liberty of the subject is at stake”, that the rule of law value weighs more heavily? Indeed, might one not think that the Lord Chancellor and Lord Steyn’s earlier nods to conceptualism were also motivated by the violence to individual liberty that would be done by permitting convictions for breaches of invalid bye-laws?
There is, therefore, nothing inherently problematic about prospective remedies in administrative law, including the suspension of declarations of invalidity or quashing orders. On some occasions, these might be excellent means of avoiding administrative chaos or inconvenience and interference with the rights of third parties. Interestingly, in their responses to the consultation, both the Public Law Project and the authors of De Smith’s Judicial Review have expressed support for greater remedial flexibility – as long as the reforms do not go so far as to require remedies to be prospective only (which would create the converse of an ouster clause and probably inspire similar judicial reactions).
Whether legislation is the best way to respond to the recent decisions of the UK Supreme Court applying the doctrine of nullity in absolutist fashion is a different question. For my part, I think it would be better for governments to make arguments for remedial flexibility in appropriate cases (as the IRAL panel suggested in relation to standing). The combination, in the UK, of remedial flexibility and the move to ‘crowdfunding‘ of public law litigation could prove a potent cocktail: judges faced with public interest challenges to complex regulatory schemes may be more willing to declare decisions or regulations unlawful, safe in the knowledge that their decision will not cause the scheme to collapse in its entirety. Certainly small remedial reforms in the area of judicial review of administrative action have had long-lasting effects far beyond those their authors anticipated. But this is, really, a political point, which depends on one’s position about the potential risk involved in legislative reform. As a matter of legal doctrine, putting remedial discretion on a statutory footing is not, in my view, an improper means of resetting the balance upset by the UK Supreme Court’s recent jurisprudence.
This content has been updated on May 24, 2021 at 12:37.