In a recently completed paper, Philip Murray and I develop a defence of what we term the classical account of administrative law. The question with which we are centrally concerned is whether (as the classical account holds) unlawful administrative acts are void ab initio, such that they can be treated without more as if they had never been committed, or merely voidable, meaning that they are valid and effective unless and until set aside by a competent court. While that question might seem highly technical — and, in one sense, it is — it is also a question that goes to the doctrinal and conceptual heart of administrative law, and which has profound practical and constitutional implications. The idea that unlawful acts should be treated as merely voidable — or that courts should be able to decide whether they are void or voidable — may be superficially attractive because it appears to replace conceptual rigidity with remedial flexibility. But in the article, we argue that the flip side of that coin is one that must not be ignored, and that abandoning the classical account is ultimately incompatible with upholding the rule of law.
The practical importance of the point is illustrated by one of the first judgments rendered by the Supreme Court. In HM Treasury v Ahmed [2010] UKSC 2, the Court held that secondary legislation under which suspected terrorists’ assets had been frozen was ultra vires. In HM Treasury v Ahmed (No 2) [2010] UKSC 5, the Treasury went back to the Court, asking it to defer the quashing of the relevant secondary legislation for several weeks in order to allow time for it to be replaced by primary legislation. During that time, it was intended that banks would continue to treat the relevant assets as frozen, thereby preventing their withdrawal pending the enactment of fresh asset-freezing legislation. Declining the Treasury’s request, Lord Philips, giving the majority judgment, explained that unlawful administrative acts are “of no effect in law”, and that “[t]he object of quashing them” is simply “to make it quite plain that this is the case”. The effect of “suspending the operation” of a quashing order could (as the Treasury intended) “give the opposite impression” because it “would suggest that, during the period of suspension …, the provisions to be quashed would remain in force”. The court, said Lord Philips, “should not lend itself” to the “obfusact[ion]” of its own judgment.
The voidness of unlawful administrative acts entitles individuals and courts alike to treat them exactly as they ought to be treated: namely, as assertions by the state of authority that it does not actually possess. Such a state of affairs is consistent with the aspect of the rule of law that insists upon government according to law, which in turn requires positive legal authorisation for official acts. The voidness of unlawful acts ensures that they can be challenged collaterally — meaning that their invalidity can be raised by way of a defence, even if the court concerned lacks the power to issue quashing orders — and avoids the authoritarian consequences that would inevitably follow if administrative acts lacking a sound legal foundation had to be treated as if they were valid unless and until quashed by a court authorised to do so.
The impetus for our article lies in a range of recent legislative, judicial and other developments that appear to cast doubt on the classical account. Some of those developments constitute indirect challenges to that account: they appear to be inconsistent with it without explicitly contradicting it. One such indirect challenge lies in the courts’ recently acquired statutory power to limit the effect of quashing orders by suspending them or making them prospective only. Such powers seem to fly in the face of the underlying conceptual structure so lucidly articulated by the Supreme Court in Ahmed (No 2). A statutory regime that authorises courts to suspend quashing orders or to deny them retrospective effect appears to presuppose that quashing orders do something, such that their effects can be limited, rather than merely, as Lord Philips contended in Ahmed (No 2), illuminating an underlying legal position that would exist independently of any granting or withholding of relief. We also examine comparable questions that arise from the courts’ longer standing powers to suspend and to limit the retrospective effect of judicial decisions holding that legislation enacted by the Scottish Parliament, the Senedd and the Northern Ireland Assembly is outwith devolved competence. The final indirect challenge we address concerns an approach adopted by courts to ouster clauses — including in R (Cart) v Upper Tribunal [2011] UKSC 28 and R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 — that appears to eschew reliance upon the classical account of administrative law.
We then move on to consider direct challenges to that account, including: the Supreme Court’s suggestion in the Continuity Bill case[2018] UKSC 64 that devolved legislation that is unlawful on ‘general public law’ grounds (as distinct from grounds enumerated in the devolution legislation) ‘is not necessarily a nullity’; Lord Reed’s judgment in R (Majera) v Secretary of State for the Home Department [2021] UKSC 46, in which he cast doubt on the classical account, thereby contradicting his judgment in R (UNISON) v Lord Chancellor [2017] UKSC 51, in which he said that that unlawful regulations were necessarily ‘unlawful ab initio, and must be quashed’; and the report of the Independent Review of Administrative Law, which argued that courts should be given ‘the freedom to decide whether or not to treat an unlawful exercise of public power as having been null and void ab initio’.
In the article, we subject these developments and arguments to close scrutiny. We contend that the classical account is capable of withstanding legislation and judicial decisions that form indirect challenges to it, and that those who directly challenge the classical account have failed to discharge the burden they are under of showing how the doctrinal and conceptual apparatus of classical administrative law can be jettisoned without undermining the rule of law. Maintaining that core constitutional principle, we argue, is possible only through adherence to the classical account. Only that account guarantees that unlawful administrative acts can be resisted collaterally as well as directly. And only that account is capable of obviating the wider deleterious consequences that inhere in the notion that unlawful administrative acts are not merely (as is currently the case) rebuttably presumed to be valid, but that such acts are valid. On that competing understanding of executive authority, individuals are compelled to respect unlawful administrative acts unless they have the opportunity, means and standing to secure a quashing order in judicial review proceedings, in which relief is available on a discretionary basis only and which a court might be statutorily permitted to limit or, in certain circumstances, required to withhold.
In Boddington v British Transport Police [1999] 2 AC 143, Lord Steyn said that the consequences of abandoning the classical account ‘are too austere and indeed too authoritarian to be compatible with the traditions of the common law’. We agree, and our article shows that the jettisoning of the classical account of administrative law is as normatively and constitutionally undesirable as it is doctrinally unnecessary in the face of recent developments that appear to — but which, properly understood, do not in fact — undermine it. A pre-publication version of our article can be downloaded via SSRN.
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