NULLITY v VOIDABILITY AGAIN !!
The Court of Appeal and another conceptual wrestling match
The Court of Appeal decision in R.(Guled) v Secretary of
State for the Home Department [2019] EWCA Civ 92 was an immigration case which
is of wider interest within the field of administrative law generally and, for
the purposes of this Blog, planning and development.
The point of interest relates to a short debate about the perceived
difference between ‘nullity’ and ‘invalidity’.
An administrative action which is found to be unlawful can, sometimes,
be characterised as being a ‘nullity’ (aka ‘void ab initio’ or just ‘void’) and
the prevailing judicial wisdom is that an action which is a ‘nullity’ at law
has no legal existence. An action which
is said to be ‘invalid’ has a legal existence unless and until it may be
quashed by the courts. There is,
however, a major flaw in this seemingly simple distinction; namely, that the
people may act upon, and change their positions, in reliance on something which
a nullity in law. Thus, they may be prejudiced by adopting the not unreasonable
presumption that the actions of an administrative body are lawful.
Administrative lawyers have wrestled with this significant problem for many
years and have manifestly failed to provide a credible solution.
44. I therefore turn to the issue
of whether the public law error in the making of DO2 rendered that order a
nullity, void ab initio, which accordingly did not invalidate Mr Guled’s
existing LTR. Lord Dyson’s words in
Lumba expressed the Anisminic principle in broad terms, and relied upon
Boddington. However, as I have
indicated in paragraphs 20-23 above, Lord Irvine’s broad statement of the
Anisminic principle did not receive explicit support from the other Law Lords
in Boddington. Lords Browne-Wilkinson,
Slynn and Steyn made observations which recognised that even an unlawful
decision or act may in some circumstances have legal consequences. Other judges, and academic writers, have
similarly proposed that nullity in this context should be treated as relative
rather than absolute. That seems to me
to be the correct approach, not least because I am uncomfortable with the use
of the word “nullity” once it is recognised that the unlawful act may have
legal consequences, at least for third parties, during the period before it is
declared unlawful. Mr Knafler, whilst of
course relying on the words of Lord Dyson in Lumba and on Draga (see paragraphs
24 and 25 above), accepted that the application of the Anisminic principle is
subject to a proviso where innocent third parties have acted in reliance on the
validity of the relevant act or decision before it is declared to be unlawful. I would therefore wish to focus upon the
very unusual circumstances of the present case, and not seek to anticipate
every situation in which the consequences of an unlawful deportation order may
have to be considered. (emphasis added)
Some may see the addition of this “proviso” are being a
solution to the problem of the innocent third party. An alternative is that the adoption of the ‘relative
invalidity’ approach is mere ad hockery and fails to address the real problem,
which is that the court have painted themselves into a corner with their over-use of the notion of ‘nullity’. One is left with the widely recognised dilemma that an action or instrument which the courts might later hold to be void may be relied upon by any number of people before it is declared a nullity. Instead of going to the heart of the matter, and seeking to unravel the off camber wheels set in motion by cases such as Anisminic, academics come up with convoluted ad hoc responses and judges duck the issue.
The adoption of this “proviso” unhelpful. To put it bluntly, one cannot have it both
ways. Either one adopts the simplistic ‘nullity’ approach or one does not.
Either an action is void ab initio or it is not. The notion of ‘relative validity’ not only
does nothing to resolve this problem but makes it worse. For example, the innocent
third party is protected in some way until the challenged to the disputed action
is determined, but this notional protection appears to be limited to one off changes of
position during this period. This leaves unclear the situation where the third
party has set the wheels of an extended process in motion during the notional currency
of the challenged action but is then left high and dry when that process has to
be abandoned. If an appeal is triggered in reliance on that challenged action,
then it will have to be discontinued once that action is determined to be a
nullity. No doubt someone will provide another ad hoc answer, but it would be the
application of one Band Aid over another.
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