In its “Judicial Review Reform: the Government Response to the Independent Review of Administrative Law” consultation document, the government puts forward a number of suggestions for reform of the concept of “nullity” within UK public law. They suggest among other things that only jurisdictional errors should be deemed void ab initio, and/or that courts ought to have a presumption against a finding of nullity. Though the recent Queen’s speech included a Judicial Review Bill, it made no mention of these specific proposals, suggesting that the government may be minded to shelve these ideas for now. In this post I’ll argue that the government would be well-advised to leave nullity alone.
The flimsy basis of the government’s analysis: misquotes and misunderstandings
In a piece published on this blog in October 2019, I examined how the courts treated the question of nullity and administrative unlawfulness in the areas of habeas corpus and the competence of the Scottish Parliament, stating that:
It appears that, in at least the two areas of law discussed above, the quality of the nullity assigned to an administrative act is contingent on the type of error made. Where the error goes to jurisdiction (or competence), it appears that that act is automatically void. Where the error is non-jurisdictional, then that act is void in some less absolute sense. That is, the consequences of a finding of nullity in a non-jurisdictional case are a matter of discretion, whereas voidness follows from a finding of jurisdictional error as a matter of course.”
At paragraph 79 of the consultation document, the government selectively quotes from the above passage and attributes to me the view that that passage represents a statement of “the law”. That is incorrect. My piece analysed the law in the discrete areas of habeas corpus and Holyrood competence in order to challenge the idea that there was a unitary doctrine of nullity applying across all of public law. I used this analysis to suggest that the “standard theory of administrative unlawfulness” did not capture the more piecemeal and nuanced approach applied by the courts in practice.
I refrained from saying that public law nullity more generally retained this idea of jurisdictional/non-jurisdictional error. Indeed, doing so would have run counter to decades of settled case law running through Anisminic, Page and countless others.
Misquotes aside, the government’s suggested approaches (set out at para. 81 of the consultation document) suffer from a number of flaws that demonstrate a lack of thought and care being applied to a complex area of law.
- Misuse of the idea of legal certainty
At paragraph 76, the government criticises the doctrine of nullity on the basis that it “is contrary to legal certainty…in that it leads to a situation whereby an apparently valid legal act is actually null and void from the outset”, such as a statutory instrument on which citizens rely only to find some years later that it was void from its inception.
This analysis is too simplistic and misunderstands the nature of “legal certainty” in the way it is typically used by lawyers. Legal certainty is generally regarded as a quality of law that obtains insofar as well-advised citizens can hope to plan their lives and comply with their legal obligations under it. If a statutory instrument is ultra vires its parent statute, by its very nature it creates legal uncertainty, in that a well-advised citizen cannot know which legal act to treat as applicable. Do I follow what the statutory instrument says, or do I act as if it has no force in light of the statute? The present approach to nullity provides a clear answer to that dilemma (follow the statute, disregard the statutory instrument), and the government’s approach does the opposite. Further, it generates a second level of uncertainty by requiring you to predict whether a court would at the remedy stage uphold the statutory instrument’s legal force in some future litigation.
Worse still for legal certainty, the government’s proposed approach involves re-introducing the generalised distinction between jurisdictional and non-jurisdictional errors. That distinction being slippery and practically unworkable is well-known to public lawyers, who in any event have long argued that a statutory grant of jurisdiction is conditional on it being exercised in accordance with basic principles of fairness, legality and rationality.
2. Using broad legislative terms to supersede decades of considered, piecemeal pragmatism from the courts
In fact, the law as it presently operates has sophisticated mechanisms to ensure continuity and legal certainty. Take habeas corpus law for example. In that area, applicants must seek judicial review of the judicial decision authorising their imprisonment, rather than bringing a direct habeas corpus action, save where that judicial decision made a jurisdictional error. My article on the topic was not a criticism of the approach to habeas corpus so much as a criticism of a unitary theory of nullity. There is logic to the approach to habeas corpus: you can’t have people skipping the queue in imprisonment cases with a habeas action while there is an extant court ruling stating that that person is lawfully imprisoned. It makes procedural and practical sense to require that individual to seek to judicially review that judgment before launching a prioritised habeas action, even if that court decision may in fact be void ab initio. This is one example of how the courts calibrate the way nullity operates to the practical needs of that area of law.
Although in my view problematic in many ways, the TN (Vietnam) case also demonstrates how courts are conscious of the potential chaos that could ensue if all legal effects stemming from an ultra vires act were rendered void by a court. In that case, where a court or tribunal makes a decision under an ultra vires statutory instrument, those judicial decisions may nonetheless remain extant unless and until they are shown to have been individually unfair (although this is subject to the Supreme Court’s imminent ruling on the matter). Far from creating impractical legal black holes, the pragmatic approach the courts take to nullity means that judicial and administrative decisions flowing from those ultra vires foundations can remain in force.
The above are just some of the myriad ways in which courts work through administrative unlawfulness with a degree of pragmatism. These are complex and sensitive issues which the government consultation does not appear to have grappled with in any detail. For example, how would its proposal deal with Boddington-type cases in which a defendant to a prosecution argues that the legislation under which they are being prosecuted is ultra vires? It may be that this is one of the several areas of judicial review that the government would be well-advised to leave alone.
Finnian Clarke is an Employment Tribunal Caseworker at United Voices of the World and a future pupil barrister at Doughty Street Chambers.
(Suggested citation: F. Clarke, ‘Be careful what you wish for: The government’s judicial review consultation on public law nullitty’, U.K. Const. L. Blog (24th May 2021) (available at https://ukconstitutionallaw.org/))